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TMI Blog2017 (3) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... the Order-in-Original is liable to be upheld as the appeal filed by the department and the Order-in-Appeal have confirmed the findings of the Order-in-Original because in the impugned order, the Commissioner (A) has agreed that appellant is eligible for CVD and EC and SHE cess i.e. Sl. No. 3 3,01,788/- - Appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... Heard both the parties and perused the records. 3. The learned counsel for the appellant submitted that the impugned order passed by the Commissioner (A) is not sustainable in law as the learned Commissioner (A) has ignored the provisions of CENVAT Credit and also the judgments delivered by the Tribunal on this aspect. He further submitted that the appellant, who is a DTA unit had procured the goods from an EOU unit of the appellant. The EOU paid the duty availing exemption under Sl. No.2 of Notification No.23/2003-CE. The duty paid by EOU and the credit taken on the said payment by the appellant is shown in the following table: Sl. No. Description of Duty Rate of duty Credit taken by the appellant 1 BCD 3.75% x 2 CVD 10% &rad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same is permitted under proviso to Section 3(7) and Section 91 and 93 of the Finance Act, 2004 and 136 and 137 of the Finance Act, 2007. In support of his submission, he relied upon the following authorities: i. Emcure Pharmaceuticals Ltd. vs. CCE, Pune: 2008 (225) ELT 513 (Tri.-Mumbai); ii. CCE, Chennai vs. Jumbo Bags Ltd.: 2013 (296) ELT 513 (Tri.-Chennai). He further submitted that the Commissioner (A) while allowing the department appeal has travelled beyond the show-cause notice. He further submitted that the department filed an appeal against the Order-in-Original on the ground that the appellant was not eligible to take credit on customs duty paid under Section 12 of the Customs Act and the cess paid thereon. In fact, the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A) has held that appellants are not entitled to credit availed at Sl. No.1,5 and 6 of the said table which is not the issue raised in the show-cause notice. Secondly, I also find that the Order-in-Original is liable to be upheld as the appeal filed by the department and the Order-in-Appeal have confirmed the findings of the Order-in-Original because in the impugned order, the Commissioner (A) has agreed that appellant is eligible for CVD and EC and SHE cess i.e. Sl. No. 3 & 4 in the table amounting to ₹ 3,01,788/-. Therefore, in view of this, I hold that impugned order is not sustainable in law and the same is set aside and the Order-in-Original is upheld. Consequently, the appeal is allowed with consequential relief, if any. (Operat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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