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TMI Blog2018 (7) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... c Acid and Phosphoric Acid and are registered with the Central Excise Department. They are availing the facility of CENVAT credit on inputs, input services and capital goods. They are also providing taxable services under Consulting Engineering Service, GTA Service Manpower Recruitment and Supply Service etc. in the manufacture of their finished goods and also for export of the goods. In audit, it was observed that the appellant had used portion of CENVAT credit towards payment of education cess and secondary higher education cess. Department was of the view that the appellants cannot utilize the CENVAT credit of basic excise duty for payment of education cess / secondary higher education cess. Show cause notices were issued and after due p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lement of a manufacturer / service provider to avail credit of the various duties / taxes enumerated therein and Rule 3(4) of the CENVAT Credit Rules, 2004 provides for the manner in which the credit availed under Rule 3(1) of the CENVAT Credit Rules, 2004 by such a manufacturer / service provider can be utilized. A perusal of the aforesaid Rules clearly shows that CENVAT credit availed under Rule 3(1) by a manufacturer / service provider can be utilized by such manufacturer / service provider for payment of any 'duty of excise' on any final products. Since education cess and secondary higher education cess are being 'duties of excise', the utilization of CENVAT credit of the basic excise duty for payment of educational cess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Central Government in the Ministry of Finance (Department of Revenue), under the provisions of the Central Excise Act, 1944 (1 of 1944) or under any other law for the time being in force. 138. Secondary and Higher Education Cess on excisable goods - (1) The Secondary and Higher Education Cess levied under section 136, in the case of goods specified in the First Schedule to the Central Excise Tariff Act, 1985, being goods manufactured or produced, shall be a duty of excise [in this section referred to as the Secondary and Higher Education Cess on excisable goods), at the rate of one per cent, calculated on the aggregate of all duties of excise (including special duty of excise or any other duty of excise but excluding Education Cess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e considered the submissions. The very same issue had come up before this Tribunal also and in case of CCE Vapi Vs Mis Balaji Industries as reported in 2008(232) ELT 693 (Tri-Ahmd.) = (2008-TIOL-2629- CESTAT- AHM). This Tribunal had also allowed the benefit of utilization of credit of basic excise duty for payment of education cess. Further, as submitted by the respondent, there are several other decisions of the Tribunal rendered subsequent to the decision of M/s Sun Pharmaceutical, where similar view has been taken. The learned SDR could not submit a copy of the stay order also. " 4. We agree with the view taken by the Tribunal; and the appeal is devoid of any merits. Both the substantial questions raised by the appellant do not involve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case was recalled by the same Bench vide order dated 3-11-2011 in Review Petition No. 106 of 2011 (Emami Ltd. v. The Union of India & others). 2. Accordingly, the impugned order dated 19-8-2011 [2012 (275) E.L.T. 71 (Gau.)] is recalled and Central Excise Ref. No. 1 of 2009 is restored to its original number. 3. Learned counsel for the parties further state that the question of law referred in this reference is covered in favour of the assessee by order of this Court dated 25-7-2012 in Central Excise Appeal No. 3/2009, (The Union of India & another v. M/s Kamakhya Cosmetics & Pharmaceutical Pvt Ltd.) [2015 (323) E.L.T. 33 (Gau.)] to the effect that Cenvat credit of Basic Excise Duty can be utilized for paying Education Cess. 4. According ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of basic excise duty cannot be utilized for payment of NCC duty on the final product. 19. Under the circumstances the second part of the substantial question of law must be answered in the affirmative and it must be held that while CENVAT credit of NCC duty can be utilized under the CENVAT Credit Rules only towards payment of such NCC duty, CENVAT credit obtained from other sources can be utilized for payment of NCC duty on the final product." 8. Following the above decisions, we are of the considered opinion that the demand cannot sustain. The impugned order is set aside and the appeals are allowed with consequential relief if any. 9. The miscellaneous applications filed by the appellant for change of cause title from M/s. Sterlite Indu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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