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TMI Blog2016 (6) TMI 868X X X X Extracts X X X X X X X X Extracts X X X X ..... is inclusive of Education Cess and Secondary and Higher Education Cess payable on the aggregate of the other duties of excise. Therefore the contention of the appellants that Education Cess and Secondary & Higher Education Cess payable on that part of CVD which is equal to the basic excise duty is a part of CVD itself is not without substance. Appellants have succeeded in establishing a case in their favour. The denial of credit is unjustified. In the result, the impugned order is set aside. - Credit allowed - Decided in favor of assessee. - Appeal No. E/25024/2013 - Final Order No. A/30229/2016 - Dated:- 12-1-2016 - Hon ble Ms. Sulekha Beevi, C.S., Member ( Judicial ) Shri Karan Talwar, Advocate for the appellant Shri Anis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (1) of Section 3 of the Customs Tariff Act, 1975, the appellants pay CVD on the imported goods which is equivalent to duties of excise leviable on the like goods manufactured in India. The total CVD paid on the goods imported for the period September 2008 to June 2011 is ₹ 86,86,553/-. The department though observes that credit on CVD is available, the CENVAT credit of an amount of ₹ 2,53,003/- being CVD equivalent to Education Cess and Secondary Higher Education Cess is denied. He submitted that the rate of CVD applicable on the imported goods is the rate of total duties of excise, which is inclusive of Education Cess and Secondary Higher Education Cess payable on the aggregate of other duties of excise. Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not mention Education Cess and Secondary and Higher Education Cess. It specifies that the goods imported are exempt from so much of additional duty leviable thereon under Section 3 of Customs Tariff Act, 1975. It further states that the importer shall be entitled to avail draw back or CENVAT credit of additional duty leviable under Section 3 of Customs Tariff Act, 1975 against the amount debited in the DEPBs. That therefore credit has to be restricted to basic excise duty alone. The credit will not be available on Education Cess Secondary Higher Education Cess. The appellants did not pay the duties by way of cash, but paid by adjustment in DEPB license. The CENVAT Credit Rules. 2004 allows only duties paid as credit and not duties adjus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As per Section 3(1), one of the duties of customs leviable on imported goods is additional duty of customs (CVD). It also provides that, the said CVD is to be equal to the excise duty for the time being leviable on a like article which is produced or manufactured in India. The duties of excise leviable on excisable goods manufactured in India are as under:- a. BED at the rate specified in the First Schedule to the Central Excise Tariff Act, 1985; b. SED at the rate specified in the Second Schedule to the Central Excise Tariff Act, 1985; c. Additional duty of excise under Additional Duties of Excise (Textile Textile Articles Act) Act, 1978; d. Additional duty of excise under Additional Duties of Excise (Goods of Speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed goods. In the case of goods produced by EOUs, which are Units within the territory of India, the intention is to charge excise duty equivalent to the Customs Duty leviable on such goods, if imported. The calculation of such excise duty includes Basic Customs Duty as well as Additional Customs Duty. In turn, the Additional Customs Duty includes the excise duty as well as cess on excise of duty. The formula provided under Rule 3(7) of the Cenvat Credit Rules, uses an expression CVD but the same is defined to be the Additional Duty of Customs . Hence, the expression would include not only the amount equivalent to the excise duty but also the amount equivalent to the cess on such excise duty. . Similar view was taken in the case of Ja ..... X X X X Extracts X X X X X X X X Extracts X X X X
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