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TMI Blog2018 (10) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal filed by the Department with regard to imposition of penalty equivalent to credit disallowed and levy of interest was allowed by the Commissioner(Appeals). Since the issue involved in both the appeals is same and appeals are against common impugned order, both appeals are disposed of by this common order. 2. Briefly the facts of the present case are that the appellants are engaged in the manufacture of cement falling under CSH 25232930 of CETA, 1985. During the course of audit of the records of the appellant by the Internal Audit Party of the Department for the period September 2013 to October 2014, it was observed that the appellant had availed CENVAT credit of Rs. 29,50,845/- for the period from July 2010 onwards to February 2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 010 provided for levy of 'Clean Energy Cess' as 'duty of excise' in respect of goods specified in Tenth Schedule and sub-section (7) of Section 83 also declares that any of the provisions of Central Excise Act, 1944 relating to levy, exemption from duty of excise, refund, offences, penalties and confiscation will be applicable in respect of Clean Energy Cess levied under sub-section (3). It is his further submission that Section 83(7) of the Finance Act, 2010 is a case of a legislation by reference and the object of the said sub-clause is, wherever a reference to 'duty of excise' has been made in Section 3(1) of CCR, the said expression will also refer to 'Clean Energy Cess' levied under Section 83(3) of the Finance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rule 3(1) of CCR. Learned consultant also submitted that the penalty imposed under Rule 15(1) of CCR read with Section 11AC is also not sustainable as the ingredients contained in Rule 15(1) are not satisfied in the present case. He also placed reliance on the following case laws:- i. Bangalore Jute Factory Co. Vs. Inspector of Central Excise [1992 (57) ELT 3 SC] ii. Singareni Collieries Co. Ltd. Vs. CCE, Hyderabad [2016(341) ELT 378 (Tri. Hyd.)] 5. On the other hand the learned AR defended the impugned order and submitted that the Commissioner(Appeals) has considered all the submissions of the appellant and has given detailed reasons for holding that the appellants are not entitled for CENVAT credit under Rule 3 of CCR as the Cess h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Cess has been paid as duty of excise and the same has been levied under Section 83 of the Finance Act, 2010. I have also examined Rule 3 of CCR and the Notification No.2/2010 dt 22/6/2010 and also the Finance Act, 2010 vide which Clean Energy Cess was imposed. Further I find that while interpreting the provisions of Sugar Cess Act, 1982 and the CCR, Hon'ble High Court of Karnataka in the case of Sri Renuka Sugars Ltd. cite supra held that Sugar Cess levied and collected as additional duty on imported sugar would qualify for CENVAT credit and the Hon'ble High Court while answering the substantial question of law in favour of the appellant/assessee, made the following observation: 40.In the instant case, it is not in dispute that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r going through the decision in Sri Renuka Sugars Ltd. cited supra, I find that the Sugar Cess levied under Sugar Cess Act, 1982 is similar to Clean Energy Cess levied under Section 83 of the Finance Act, 2010 and therefore the ratio laid down by the Hon'ble High Court of Karnataka in the case of Sri Renuka Sugars Ltd. is squarely applicable in the facts and circumstances of the case, because the Clean Energy Cess has been levied and collected as duty of excise by virtue of Section 3(1) of Customs Tariff Act. Therefore by relying upon the ratio of the decision of Hon'ble High Court of Karnataka in the case of Sri Renuka Sugars Ltd., I am of the view that the impugned order denying the CENVAT credit of Clean Energy Cess is not sustai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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