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TMI Blog2023 (9) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been disposed off in the light of the decision of the Hon ble Apex Court in the case of SRD Nutrients [ 2017 (11) TMI 655 - SUPREME COURT] . In the case of SRD Nutrients the issue is before the Hon ble Apex Court is whether the refund of EC SHEC is available to the assesse paid through PLA availing area based exemption or not, where it was held that appellants were entitled to refund of Education Cess and Higher Education Cess which was paid along with excise duty once the excise duty itself was exempted from levy - Although the said decision has been examined by the Hon ble Apex Court in the case of Unicorn Industries Vs. Union of India [ 2019 (12) TMI 286 - SUPREME COURT] , which has been disposed off in the light of the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ash balance. 2.1 During the course of audit conducted for the period from April 2008 to March 2009, it was observed that the Appellant was utilizing Cenvat Credit of Basic Excise Duty (BED) for payment of EC and SHEC. Accordingly, the Appellant was issued a show-cause notice proposing to demand BED utilized for payment of EC and SHEC in contravention of Rule 3(7)(b) of the CCR, 2004 by alleging wilfull evasion on part of the appellant in payment of EC and SHEC. 2.2 A show-cause notice was issued to that effect on 06.01.2010 and the same was adjudicated by the adjudicating authority confirming the demand on account of recovery of cenvat credit utilised for payment of EC and SHEC. 2.3 The appellant challenged the order of adjudicatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... djudication. Therefore, this appeal is before us. 3. The ld.Counsel for the appellants submits that the issue involved in these matters is no longer res integra and has been decided in favour of the appellants in their own case reported in 2007 (219) ELT 585 (Tri.-Kolkata). 3.1 It was further submitted that the said issue came up before the Hon ble High Courts and the Tribunal in the following cases and have decided the issue in favour of the appellants : a. Union of India v. Kamakhya Cosmetics Pharmaceutical Pvt. Ltd 2015 (323) ELT 33 (Gau.) b. Dharampal Satyapal Ltd. v. CCE 2015 (323) ELT 55 (Gau.) c. CCE v. Prag Bosimi Synthetics Ltd. 2013 (295) ELT 682 (Gau.) d. Dharampal Satyapal Ltd v. CCE, Shillong ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Revenue, relied on the decision of this Tribunal in the case of in the case of CCE, Jammu v. Tawi Chemical Industries 2013 (290) ELT 734 (Tri.- Del), wherein this Tribunal distinguished the decision of the Hon ble High Court of Guwahati in the case of CCE Vs. Prag Bosimi Synthetics Limited reported in 2013 (295) ELT 682 (Gau.) to say that was the decision by the Hon ble High Court in case of NCC duty and held that BED can be utilized for payment of for payment of EC SHEC, which are not exempted under Notification No.32/99-CE dated 08.07.1999. This issue has been decided by the Hon ble Apex Court in the case of Hitachi Home Vs. Commissioner reported in 2018 (361) ELT A17 (SC). 5. In rebuttal to the decision relied upon by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t credit of BED for payment of EC and SHEC while availing area based exemption under Notification No.20/2008-CE dated 27.03.2008 or not. 8. We find that the Revenue is having on the decision of Tawi Chemical Industries (supra). As per this decision, the appellants are not entitled to utilise the BED for payment of EC and SHEC, which has been affirmed by the Hon ble Apex Court. 9. We have gone the decision of the Hon ble Apex Court wherein the appeals have been disposed off in the light of the decision of the Hon ble Apex Court in the case of SRD Nutrients (supra). In the case of SRD Nutrients (supra) the issue is before the Hon ble Apex Court is whether the refund of EC SHEC is available to the assesse paid through PLA availing area ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Cenvat Credit Rules, 2004. 7. The above view was upheld by the Tribunal while dismissing appeal of the Revenue against the above order. It was held that there was no bar to utilize Cenvat credit of Basic Excise Duty for payment of Education Cess. 8. Since the view taken by the Tribunal is in conformity with the view taken by this Court referred to above, the question of law raised by the Revenue has to be decided against it and answered in the affirmative. 13. Therefore, following the decision of the Hon ble Guwahati High Court, we hold that the appellants are entitled to utilise the cenvat credit of BED for payment of EC and SHEC. 14. Accordingly, the impugned orders are set aside and the appeals are allowed with c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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