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TMI Blog2020 (4) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... VAPI [ 2014 (11) TMI 706 - CESTAT AHMEDABAD] held that amended rule 3(7)(a) is applicable even before amendment also. The appellant is entitled for the Cenvat Credit in respect of Education Cess and Secondary and Higher Education Cess - However, the Adjudicating Authority has liberty to calculate correctly the amount of the Cenvat Credit after taking into account Education Cess and Secondary and Higher Education Cess as per the formula prescribed in the Rule - Appeal allowed by way of remand. - Excise Appeal No.13105 of 2018 - A/10850/2020 - Dated:- 6-3-2020 - HON'BLE MEMBER (JUDICIAL), MR. RAMESH NAIR APPEARANCE: Shri Rajmohan Asokan, Taxation Manager for the Appellant Shri G Jha, Superintendent (AR) for the Res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S.T. ,VAPI 2016 (336) E.L.T. 75 (Tri.-Ahmd.) COMMISSIONER OF C.EX. S.T., LUDHIANA vs KHANNA PAPER MILLS LTD. 2015 (326) E.L.T. 167 (Tri.-Del.) 2.1 By relying on the above judgments, he submits that in all three judgments even for the period prior to the amendment in Rule 3(7)(a), the tribunal has allowed the Cenvat Credit in respect of Education Cess and Secondary and Higher Education Cess on the ground that the amendment is clarifactory, therefore, it has retrospective effect. 3. Shri G Jha, Learned Superintendent (Authorized Representative) appearing on behalf of the revenue submits that there is no mention about the retrospective effect in the amendment Notification No. 22/2009-CE(N.T.) dated 7th September, 2009 ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same issue in JAI CORP. LTD.(supra) held that amended rule 3(7)(a) is applicable even before amendment also. The relevant Paras are reproduced below:- 5. In view of the above settled position of law Cenvat credit of Cesses was admissible before the amendment also. So far as calculation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch goods, if imported. The calculation of such excise duty includes Basic Customs Duty as well as Additional Customs Duty. In turn, the Additional Customs Duty includes the excise duty as well as cess on excise duty. The formula provided under Rule 3(7) of the Cenvat Credit Rules, uses an 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emoval of doubts and not for any other reason. It was also held that the revenue s contention for restricting credit prospectively has no rational and the same is rejected. Similar issue has been considered by Delhi Bench of Tribunal. In the said judgment of the tribunal, the following order was passed:- 10. The Commissioner (Appeals) has applied the ratio laid in Jumbo Bags Ltd. case (supra). In all the above cases it has been held in favour of the assessee. Though the decision in Emcure Pharmaceuticals Ltd. case which has been followed in the later judgment noted above, was rendered prior to the amendment inserting the second proviso to Rule 3(7)(a), the principle enunciated therein along with the other judgments are correctly applic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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