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TMI Blog2016 (8) TMI 436X X X X Extracts X X X X X X X X Extracts X X X X ..... ion cess is payable on such industrial cess. The appellants utilized the credit of education cess availed on inputs to discharge education cess on tractors of above 1800 CC. There is no industrial cess or education cess on the tractors of below 1800 CC. Accordingly they calculated the proportionate credit of education cess availed on common inputs and reversed the same. It is found that there is no dispute on the fact of such reversal which has been admitted in the show cause notice itself. In spite of such reversal, the appellants were called upon to pay an amount equal to 10% of the total price of exempted tractors invoking Rule 6(3)(b) of the Cenvat Credit Rules, 2004. Therefore, such a demand is not legally sustainable as already held i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confirmed a demand of ₹ 2,68,25,330/- and imposed a penalty of an equivalent amount on the appellants. Aggrieved by the said order, the appellants filed this appeal. 2. The learned Counsel for the appellant Shri Amit Jain submitted that the impugned order is legally unsustainable, lacking in judicial discipline and contrary to various judgments of the Tribunal. All the tractors manufactured by the appellants are exempted from Central Excise duty. Industrial cess is leviable on the tractors with engine capacity of above 1800 CC and accordingly Education cess of 2% on such industrial cess is payable in terms of Section 93 of the Finance Act, 2004. Against ₹ 400/- to 500/- as liability towards education cess on a tractor the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red as sufficient compliance of the said provisions. He submitted that the impugned order correctly invoked the provisions of Rule 6 (3) (b). 4. We have heard both the sides and examined the appeal records. The point for decision in this appeal is whether or not the appellants are liable to pay an amount equal to 10% of the value of tractors of engine capacity below 1800 CC when they have availed Cenvat credit of educational cess on common inputs without maintaining separate records. We have perused the impugned order. The Original Authority observed that industrial cess and education cess being paid are in the nature of excise duty only. The appellants have to maintain separate accounts for receipt and consumption of the inputs which ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .C.) held that if the debit is made of the credit availed earlier it will amount to non-availment of such credit. We find though the Original Authority examined the said decision of the Hon'ble Supreme Court he distinguished the same on the ground that reversal of proportionate credit of education cess for a particular period was made much later after the clearance of exempted goods and hence the above decision will not apply. However, we find such distinction is not based on the ratio followed in various decisions. In Mercedes Benz India (P) Ltd. vs. CCE, Pune - I reported in 2015 (40) S.T.R. 381 (Tri. - Mumbai). The Tribunal held the Revenue could not insist the appellant to avail a particular option under Rule 6. When the appellant c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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