9911796707
TMI Blog2013 (8) TMI 956X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered as a levy on total excise duty, the obvious conclusion would be that the credit also admissible - credit allowed. Whether the appellant is eligible for Cenvat credit on education cess paid to the extent of full amount or not? - Held that:- The decision of the Tribunal in Emcure Pharmaceuticals Ltd. [2008 (1) TMI 147 - CESTAT, MUMBAI] case is squarely applicable in respect of the Cenvat credit of education cess in respect of the appellant - credit allowed. Whether the appellant can take Cenvat credit of excise duty paid equal to the amount of cess paid on the additional customs duty or the amount calculated in accordance with formula as per Rule 3(7)(a) of CCR? - Held that:- When the statutory provisions clearly provide that appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the 3rd time or not which has finally been settled in favour of the EOUs, there were many EOUs which were discharging the cess for the 3rd time in respect of invoices issued for their DTA clearances. The supplier of the goods in this case belonged to this category who discharged the cess for the 3rd time also. The appellant took the credit of the education cess paid on the CVD portion as well as the education cess paid on the overall duty for the 3rd time. The Department took objection to the availment of credit in respect of the 3rd education cess only in respect of the invoices as mentioned above. (b) The second dispute is about Cenvat credit of education cess availed by the appellant in respect of invoices at Sl. Nos. 3 to 95 in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal excise duty arises only after calculation of equal amount to customs duty and therefore the 3rd time cess should be paid supports the assessee's case. If the 3rd education cess is considered as a levy on total excise duty, the obvious conclusion would be that the credit also admissible. What is required under CCR is the payment of excise duty or education cess specified under Rule 3 and not whether it is payable or not. Looking from any angle I am unable to find any ground to reject and in any case, the lower authorities also have not indicated any ground for rejecting the Cenvat credit on the 3rd education cess. 3. The next issue is whether the appellant is eligible for Cenvat credit on education cess paid to the extent of full a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rule 3 and, therefore, the only credit available to the appellants in respect of the inputs supplied by EOU will be the amount as specified under the formula given therein. However, this stand is not tenable for the reason that the non obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found in the same enactment or some other enactment, and not all provisions contained therein. My view is fortified by the Apex Court's decision in UOI v. CM Kokil - (1984) Supp. SCC 196, wherein the Apex Court has held as under :- "Section 70, so far as is relevant, says "the provisions of the Factories Act shall, notwithstanding anything contained in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Establishments Act, 1948." The above decision has been followed by the larger bench of the Tribunal in Das & Co. v. CCE, 2000 (121) E.L.T. 275, holding that a non-obstante clause is used where contrary provisions exist. Similar view has been expressed by the Apex Court in the case of Jindal Poly Films Ltd. v. CCE, 2006 (198) E.L.T. 3 (S.C.) in the context of the Modvat Rules. Rule 3(1) is applicable to all manufacturers or producers of final products or providers of taxable services including 100% EOU. Rule 3(7)(b) allows utilisation of Cenvat credit by all categories of manufacturers or producers of final products or providers of taxable services, including 100% EOU, in respect of AED for payment of AED, NCCD for payment of NCCD, educat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l additional customs duty payable. However, in the case of the receiver of the goods, Rule 3(7)(a) of CCR is very clear. It does not give any option to take the credit by the receiver of the goods and he is required to take the credit as per the formula only. In such a situation, the credit of ₹ 82,965/- availed by the appellant is clearly not admissible and therefore is required to be paid back. Even though, the learned counsel presented detailed arguments about limitation as to why they are not liable to pay this amount and why penalty should not have been imposed, finally since the amount involved is small, the appellant has no serious objection to pay the amount as well as penalty. Since this consent was made by the appellant, I a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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