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TMI Blog2017 (3) TMI 1402X X X X Extracts X X X X X X X X Extracts X X X X ..... ssuance of N/N. .22/2009-CE(NT), dt.07.09.2009, even for the earlier period, held that the appellants are rightly entitled for the credit of all the additional duties of customs paid by the EOU u/s 3 of the CTA even for the period prior to 7-9-2009 - while calculating admissible CENVAT credit u/r 3(7)(a) of CCR, 2004, appellant has correctly factored Education Cess and Higher Education Cess as CVD paid - appeal allowed - decided in favor of assessee. - Appeal No. E/12896/2013-SM - Order No. A/10619 / 2017 - Dated:- 14-3-2017 - Dr. D. M. Misra, Member (Judicial) For Appellant: Shri Vinay Kansara, Advocate For Respondent: Shri L. Patra, A.R. ORDER Per Dr. D.M. Misra This appeal is filed against OIA No.CCEA-SRT-II/SSP- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ELT 381 (Tri-Mum), CCE Daman Vs PVN Fabrics - 2013 (289) ELT 327 (Tri-Ahmd) Jai Corp. Ltd. Vs. Commissioner of Central Excise, Vapi 2015 (317) ELT 489(Tri-AHD). 4. The learned Authorized Representative for the Revenue reiterates the findings of the learned Commissioner (Appeals). 5. I find that the issue is no more res integra and is covered by the above decisions of the Tribunal. The Tribunal, in Metaclad Industries case taking into account the amendment to the said Rule 3(7)(a) of CENVAT Credit Rules 2004, by issuance of Notification No.22/2009-CE(NT), dt.07.09.2009, even for the earlier period, it is observed as follows:- 5.4 The clarification/amendment made in the said Rule in 2009 is only for the purpose of removal of doubts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of admissible Cenvat credit, as per formula prescribed under Rule 3(7)(a) of the Cenvat Credit Rules, 2004 is concerned, appellant argued that elements of Education Cess and SHE Cess has to be considered as a part of CVD only. Appellant has relied upon the case laws of Shri Venketeshwara Precision Components v. CCE, Chennai (supra) and CCE, Chennai v. Jumbo Bags Limited (supra). In view of these case laws relied upon by the appellant this issue is no more res integra as per Para 6 of the case law CCE, Chennai v. Jumbo Bags Limited (supra) :- 6. As regards the cases where the duty has been paid by the suppliers availing exemption under Sr. No. 2 of the Table under Notification No. 23/2003-C.E., dated 31-3-2003, the restriction un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Since the restriction under the said sub-rule (7) is worded in such a ways to restrict credit of Basic Customs Duty but allow credit of Additional Customs duty, the appellants are within their rights to take credit of an amount equivalent to the Additional Customs Duty inclusive of excise duty as well as the amount of cess on such excise duty. I also note that there is no restriction on taking credit of cess in the Cenvat Credit Rules, 2004 although there is a restriction regarding utilization of various credits. On ..... X X X X Extracts X X X X X X X X Extracts X X X X
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