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TMI Blog2023 (4) TMI 1317X X X X Extracts X X X X X X X X Extracts X X X X ..... e of EMCURE PHARMACEUTICALS LTD. VERSUS COMMISSINOR OF C. EX., PUNE [ 2008 (1) TMI 147 - CESTAT, MUMBAI] where it was held that Rule 3(7)(b) also opens with the non-obstante clause. Therefore, if the interpretation canvassed by the Revenue is accepted as correct, there would have been no question of utilisation of education cess for payment of education cess if the taking of the credit itself, according to the Revenue, is barred by Rule 3(7)(a), and the provisions of Rule 3(7)(b) would, therefore, be rendered redundant. The facts of the present case are similar to the facts considered in the aforesaid decision of the Tribunal and therefore, the contention that Education Cess is a surcharge which relates in enhancement of the tax, is agreed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Rule 3(4) allows a manufacturer to utilise such credit for payment of excise duty on final product or service tax on output service. However, an exception has been carved out in respect of inputs supplied by an EOU where the availment of credit is restricted to the formula specified under Rule 3(7)(a) only in respect of basic excise duty levied under Section 3 of the Central Excise Act. Rule 3(7) (a) does not cover all duties paid by EOU as it refers only to availment of credit of duty paid by EOU under Section 3 of the Central Excise Act, 1944. The rule refers to Notification 23/2003-C.E. which exempts duty leviable under Section 3 of the Central Excise Act, 1944 and nowhere refers to the Finance Act under which education cess is levied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions. Thus the non obstante clause in Section 70, namely, notwithstanding anything contained in that Act must mean notwithstanding anything to the contrary contained in that Act and as such it must refer to the exempting provisions which would be contrary to the general applicability of the Act. In other words, as all the relevant provisions the Act are made applicable to a factory notwithstanding anything to the contrary contained in it, it must have the effect of excluding the operation of the exemption provisions. Just as because of the non-obstante clause the Act is applicable even to employees in the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cess if the taking of the credit itself, according to the Revenue, is barred by Rule 3(7)(a), and the provisions of Rule 3(7)(b) would, therefore, be rendered redundant. 7. In the light of the above discussion, I am of the view that credit of education cess is admissible to the appellants herein, and accordingly set aside the impugned order and allow the appeal. 4. I find that the facts of the present case are similar to the facts considered in the aforesaid decision of the Tribunal and therefore, I find myself in agreement with the contention that Education Cess is a surcharge which relates in enhancement of the tax. Further the objective was not to levy excise duty on goods cleared by EOU. The question of adding Education Cess under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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