2017 (3) TMI 7

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..... ts falling under Chapter Heading 29 and 30 of Central Excise Tariff Act (CETA), 1985 and they are availing CENVAT credit under CENVAT Credit Rules (CCR), 2004. During the course of verification of appellants CENVAT account for the period from September 2010 to March 2011, it was observed that they had availed CENVAT credit on duty paid invoices raised by 100% EOU. It appeared on verification of the said invoices that 100% EOU had charged Education Cess and Secondary Higher Education (SHE) Cess on customs duty and Education Cess and Secondary Higher Education cess on CVD as well as on aggregate duties. However, it appears that appellants are not eligible to avail credit of duty paid on CVD. A show-cause notice dated 7.10.2011 was issued with .....

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..... 5 Education Cess on Custom Duty 2% x 6 SHE Cess on Customs duty 1% x 7 Education Cess on aggregate duties 2% √ 8 SHE Cess on aggregate duties 1% √ He further submitted that the appellant has taken credit on Sl. No.2,3,4,7 and 8 as can be seen from the above table. He further submitted that the appellant is covered under the 2nd Proviso to Rule 3(7) as the clearances have been made after 7.9.2009. Under Rule 3(7) of the CCR, the goods produced or manufactured by an EOU unit availing exemption under Sl. No.2 of the Notification No.23/2003 paying excise duty leviable under Section 3 of Central Excise Act and cess leviable under Section 91 read with 93 of the Finance Act, 2004 and 136 and 138 of the Finance Act, 2007 .....

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..... he show-cause notice was issued with proposal to deny CENVAT credit on Sl. No.3 and 4 as mentioned in table above. However, department seeks to deny the credit availed on Sl. No.1,5,6 as mentioned in table above. He also submitted that the Revenue is incorrect, both factually and legally, because the appellant has not taken any credit at all on item No.1,5,6 and therefore, the issue whether the appellant is eligible for credit on the same cannot be raised. He further submitted that it is a settled position of law that when the issue has not been raised by the Revenue in the show-cause notice, the same cannot be raised in the appellate stage and in support of his submission, he relied upon the following decision: i. CC (Preventive), Luckno .....

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