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TMI Blog2022 (4) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... and finds that it is crystal clear that whatever duty specified is available as credit under CENVAT Credit Rules, 2004 and the total such credit availed is referred to in these rules as CENVAT Credit. Wherever the term CENVAT credit appears in these rules, they refer to the credit of duty as specified in rule 3 and entirely include in the terms CENVAT credit. It is not merely talking about Basic Excise Duty and for that other duties individually. Thus, learned Commissioner concludes that CENVAT Credit as appears in the Rules is not limited to basic excise duty and for other duties also. Learned Commissioner appears to mean thereby, that the Rules do not contemplate any credit of cesses payable and paid. This Tribunal had gone into the very same issue in the case of ENCORE HEALTHCARE PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, AURANGABAD [ 2017 (5) TMI 1379 - CESTAT MUMBAI] and have held that credit admissibility in such circumstances should be as per Rule 3(7) of CENVAT Credit Rules. Therefore, the impugned order does not require any interference inasmuch as the admissibility of credit of duty is concerned. Interest - HELD THAT:- The appellants have wrongfully avail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailable as credit. Similarly, goods received from EOU also CVD should be inclusive of EC and SHEC. Further, Section 93(1) of the Finance (No. 2) Act, 2004 and Section 138(1) of the Finance Act, 2007 clearly specify that EC and SHEC shall be a duty of excise calculated at the rate of 2% and 1% respectively; therefore, ad-valorem rate of CVD must be considered as 10.3% i.e. basic excise duty @ 10%, EC @ 2% and SHEC @ 1% thereon and hence, cenvat credit of first time cess shall be available under Rule 3(7)(a). 3.1. Learned counsel for the appellant also submits that in case of imported goods, the Assessee is entitled to credit of CVD under Rule 3(1)(vii). The Assessee is also credit of first time cess in terms of Rule 3(1)(vii) read with Rule 3(1)(vi) and 3(1)(via) of the Cenvat Credit Rules, 2004; the situation cannot be different when goods are procured from EOU instead of import. Hence, credit of cess paid on CVD is available when goods are procured from EOU. He further submits that the issue is no longer res integra in view of the Tribunal s decision in the case of Jai Corporation Ltd.: 2015 (317) ELT 489; Hon ble CESTAT held that where duty was paid under Sr. No. 1 of table to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the instant case, the EOU paid duty under Sl.No.2 of Notification No. 23/2003-C.E. and the Appellants have taken credit more than they were eligible as per the formula. The case of Jumbo Bags Pvt. Ltd.: 2013 (296) E.L.T. 142 (Tri. - Chennai) the supplier has not availed exemption under Notification No. 23/2003- C.E. (S. No. 2) and thus the case is not relevant in the present matter. 4.1 Learned Authorised Representative relies upon the following cases: J.K. Lakshmi Cement Ltd. Versus Commissioner of Central Excise, Jaipur-II [2018 (12) GSTL 330 (Tri.-Del)] Muscat Polymers Pvt Ltd Vs CCE Rajkot [2009-TIOL-2252-CESTAT-AHM] J.K. Cement Works Versus Commissioner of Central Excise, Jaipur [2018 (363) ELT 1195 (Tri.-Del)] Encore Healthcare Pvt Ltd Versus Commissioner of Central Excise, Aurangabad [2017 (5) TMI 1379 (E/87791/2013-Mum)] Union of India Versus Ind-Swift Laboratories Ltd. [2012 (25) S.T.R. 184 (S.C.)] Commissioner of Central Excise, Pune-I Versus GL V India Pvt. Ltd. [2015 (321) E.L.T. 611 (Bom.)] Tetra Pak India Pvt. Ltd. Vs CCE, [2021(5) MI 852-CESTAT Mumbai] 5. Heard both sides and have given careful consideration to records of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) multiplied by (CVD/100)}], where BCD and CVD denote ad valorem rates, in per cent of basic customs duty and additional duty of customs leviable on the inputs or the capital goods respectively and X denotes the assessable value. Show-cause notice relies upon the words and expressions BCD and CVD used in the Rule and contends that the formula does not give any scope for education cess and secondary higher education cess. We find that learned Commissioner relies on Rule 3(1) of CENVAT Credit Rules and finds that it is crystal clear that whatever duty specified hereinabove is available as credit under CENVAT Credit Rules, 2004 and the total such credit availed is referred to in these rules as CENVAT Credit. The above referred rule provides that a manufacturer or producer of final products or a provider of taxable service shall be allowed to take credit (hereinafter referred to as the CENVAT credit). Hence, wherever the term CENVAT credit appears in these rules, they refer to the credit of duty as specified in rule 3 as supra and entirely include in the terms CENVAT credit. It is not merely talking about Basic Excise Duty and for that other duties individually. Thus, learned Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, we are of the considered opinion that the impugned order does not require any interference inasmuch as the admissibility of credit of duty is concerned. We find that the appellants have wrongfully availed excess credit which they have reversed subsequently on being pointed out. However, as submitted by the learned Authorised Representative, interest requires to be paid in view of the Apex Court s decision in the case of Ind-swift Laboratories Ltd(supra). However, we find that the contention of the appellant that penalty may not be imposed as the issue involved is about the interpretation of the provisions of a statute and no mala fides can be imputed per se. Moreover, the appellants have immediately reversed the credit on being pointed out by the investigation team and there is no mention of protest whatsoever. For this reason, we find that the department has not made out any case for imposition of penalty. We also find that Tribunal in the case of Encore Healthcare Pvt. Ltd. (supra) also held that the availment of ineligible credit had arisen from appellant confusion about the nature and composition of levy and that there are various decisions in this regard by Tribunal, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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