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TMI Blog2023 (1) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the appellant s factory attracting excise duty but have to be treated as captively used in the factory of the appellant. The additional premise of the appellant where the said capital goods were installed is to be treated as extension of appellant s factory in view of definition of Factory as provided under section 2(e) of the Central Excise Act, 1944. The word precincts has to be given a broader meaning and the distance between such premises carrying out manufacturing process connected with the production of excisable goods, is not material to deny benefit of exemption notification. This issue is settled by the Hon ble Supreme Court in the case of SOUTH EASTERN COALFIELDS LTD. VERSUS COMMISSIONER, CUS. C. EX., MP [ 2006 (8) TMI 3 - SUPREME COURT] . Thus, the additional premise is an extension of factory of the appellant and hence benefit of notification no. 67/95-CE cannot be denied to the appellant - the situation is therefore revenue neutral, in the circumstances, demand of duty on transfer of such capital goods on the ground that the other premise is to be treated as separate premise requiring separate registration under the Act is not tenable. The OIAs to the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 67/95-CE envisaged for captive consumption is not admissible to the appellant and further sought recovery of cenvat credit of basic excise duty amounting to Rs. 13,28,394/- on the ground that the same are wrongly utilized for payment of education cess and secondary and higher education cess as both the cess are not considered as excise duty and that there is no provision in the Cenvat Credit Rules, 2004 which permits utilization of basic central excise duty for payment of education cess and secondary and higher education cess levied on final goods. Learned Additional Commissioner vide OIO dated 13.01.2012 confirmed the duty demand and interalia held that benefit of notification no. 67/95-CE dated 16.03.1995 cannot be extended to the machines cleared to the appellant s another unit which is a different and distinct unit other than appellant s registered unit. He further confirmed demand of duty pertaining to the cenvat credit of Basic Excise duty utilized towards education cess and higher secondary education cess. However, learned additional commissioner restricted the duty demand to the normal period of limitation and set aside the duty demand for the extended period on the grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utilization of cenvat credit of basic excise duty for payment of education cess, it is argued that the said issue is covered by several decisions cited in the OIA dated 31.10.2013 and department has not preferred appeal against the said OIA dated 31.10.2013 hence attained finality. 6. Shri V.G. Iyengar, learned (Superintendent) Authorized Representative appearing for the Revenue reiterated the findings given in the Orders-In-Appeal. 7. We have carefully considered the submissions made by both the sides and perused the records. We find that the case of the revenue is that since the additional premise is not registered, the same was separate unit and hence benefit of notification no. 67/95-CE is not applicable to the capital goods so cleared to the said separate unit of the appellant. In this regard, it can be seen from the available records that the capital goods in question were transferred by appellant under transfer invoice to its additional premise situated about 500 mtrs away from its registered factory premise. Further, it is not in dispute that both the premises are known as M/s. Jyoti CNC Automation Pvt Ltd; are owned and controlled by the same legal entity; and the us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucation cesses, or not. In past, in some stray cases, this appellate office have upheld the lower authority s order gainsaying cross-utilisation of basic excise duty for payment of cesses. However, I find that the issue, all the same have kept simmering and remained fluidic all along at the various higher fora. However, the legal position seems to have altered in favour of the appellant with release of the recent case-laws on the subject matters are as follows:- (i) M/s. Madura Industrial Textiles Vs. CCE, Vapi, 2013 (3) TMI 2 CESTAT Utilization of basic excise duty for discharge of education cess period from May 2009 to November 2009 Held that:- As decided in assessee s own case in [2013 (1) TMI 352 Gujarat High Court] wherein decided that the benefit of utilization of credit of basic excise duty for payment of education cess is to be allowed - in favour of assessee. (ii) M/s. New India Corpotec Versus Commissioner of Central Excise, Vapi, 2013 (1) TMI 411 CESTAT Ahmedabad Utilization of cenvat credit in basic excise duty for discharge of liability of Education Cess and Senior and Higher Education Cess Held that:- As decided in Madura I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in case of normal DTA unit, there is no embargo over utilisation of the Cenvat credit of basic excise duty for payment of education cesses. However, other way round, would definitely be a valid point of objection. Therefore, the impugned order to the above extent is set aside. Since the utilization of Basic Excise duty for payment of education cesses have been held to be valid, the penalty attributed to that portion of demand is required to be set aside and I hereby hold so. 8.2 The said finding of the Learned Commissioner (Appeals) vide OIA dated 31.10.2012 is legal and proper as held in several decisions cited therein and would apply to the earlier period as well. Further, since department has not preferred appeal against the said OIA dated 31.10.2013 and hence said order has attained finality in respect of issue of utilization of cenvat credit of basic excise duty towards discharge of education cesses. 8.3 In view of above, the OIAs to the extent confirmed the duty and penalty is required to be set aside and appeals of the appellant is required to be allowed. Accordingly, the impugned orders are modified to the above extent. Appeals are allowed with consequential relief. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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