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TMI Blog2018 (10) TMI 1534X X X X Extracts X X X X X X X X Extracts X X X X ..... the calculation of equal amount of custom duty. If third time education cess is considered as levy of the total excise duty, therefore credit is admissible to the appellant. The appellant is entitle to avail the Cenvat credit on third time education cess paid by them on inputs procured from 100% EOU - appeal allowed - decided in favor of appellant. - E/61027-61029/2018-EX[SM] - FINAL ORDER NO. 63288-63290/2018 - Dated:- 10-10-2018 - Mr. Ashok Jindal, Member (Judicial) Present for the Appellant(s): Mr. R. Raghuvendra Rao, Consultant Present for the Respondent(s): Mr. Tarun Kumar, A.R. ORDER Per Ashok Jindal : The appellant is in appeal against the impugned orders wherein the Cenvat credit paid by the appellant o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s allowed under Rule 3(7)(b) of CCR, 2004 and therefore the restrictions as regards formula prescribed for allowing education cess in respect of supplies from EOUs under Rule 3(7)(a) is not applicable to education cess and full amount of education cess paid would be admissible. In my opinion, the claim of the learned counsel that Emcure Pharmaceuticals decision would be applicable to the present case is correct. If education cess on CVD portion is admissible, 3rd time cess which is payable according to the Department on the ground that what is required to be paid by the 100% EOU is excise duty and the total excise duty arises only after calculation of equal amount to customs duty and therefore the 3rd time cess should be paid supports the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 of the Central Excise Act, 1944 and nowhere refers to the Finance Act under which education cess is levied. From this, it appears that the objective of the Legislature was to restrict availment of credit of BED paid by an EOU and not to restrict availment of credit of other duties leviable under the Finance Act, 1994 (Education Cess) and National Calamity Contingent Duty Act and Additional Duties of Excise (Textiles and Textile Articles) Act, etc. 6. According to the Revenue, since Rule 3(7)(a) begins with a non obstante clause, it overrides the provisions contained in sub-rules (1) and (4) of Rule 3 and, therefore, the only credit available to the appellants in respect of the inputs supplied by EOU will be the amount as specified un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the exemption provisions. Just as because of the non obstante clause the Act is applicable even to employees in the factory who might not be workers‟ under Section 2(1), the same non obstante clause will keep away the applicability of exemption provisions qua all those working in the factory. The Labour Court, in our view, was, therefore, right in taking the view that because of the non obstante clause Section 64 read with Rule 100 itself would not apply to the respondents and they would be entitled to claim overtime wages under Section 59 of that Act read with Section 70 of the Bombay Shops and Establishments Act, 1948. The above decision has been followed by the larger bench of the Tribunal in Das Co. v. CCE, 2000 (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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