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TMI Blog2024 (9) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... ot an excise duty but a surcharge , therefore, the order passed by the Leaned Commissioner (Appeals) is not legal and correct. Hence, the same needs to be set aside and revenue appeals to be allowed. 3. Shri Hardik Modh, Learned Counsel appearing on behalf of the Respondent submits that now the issue has been settled in various judgments that utilization of basic excise duty for payment of NCCD is permissible in terms of Rule 3 of Cenvat Credit Rules, 2004. He placed reliance on the following judgments:- CCE & ST, Silvassa and CCE & ST,Daman vs. Welspun Syntex Ltd and M/s Wellknown Polyester Ltd - 2019 (11) TMI 1268- CESTAT AHMEDABAD Commissioner of Central Excise and ST, Silvassa vs. M/s. Sanathan Textiles Pvt. Ltd - 2018 (12) TMI 356- CESTAT Ahmedabad Commissioner of Central Excise , Customs and ST, Vapi vs. M/s. Madura Industries Textiles - 2013 (1) TMI 352 - Guj. CCE , Dibrugrah vs. Prah Bosimi Synthetics Ltd - 2013 (11) TMI 487- Guwahati Union of India vs. Kamakhya Cosmetics & Pharmaceuticals Pvt Ltd - 2012 (7) TMI 902 - Guj. 4. We have carefully considered the submission made by both sides and perused the records. We find that the issue is no longer res- integra a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NCC Duty on the final product. Same view taken by the Hon'ble UttaraKhand High Court in the case of Hero Motocorp Ltd., Vs. CCE, Dehradun, 2018 (14) GSTL 200 (Uttarakhand) whereby it was held that NCCD & CESS are part of levies under rule 3(1) of Cenvat Credit Rule, 2004 making an aggregate of Cenvat Credit hence, assessee could make use of Basic Excise Duty for payment of NCCD & CESS. Even in the case of Appellant itself the utilization of credit of basic excise duty for payment of NCCD has been allowed by Revisionary Authority, Department of Revenue Government of India reported as Welspun Corporation Ltd., 2014 (314) ELT 968 (GOI). 5. This Tribunal also in the appellant's case vide order No. A/11583/2016 dated 24.11.2016 dismissed the revenue's appeal filed on the same issue on the same line. As regard the sole reliance of the Revenue on the Judgment of Sikkim High Court in the case of Unicorn Industries vs. Union of India (Supra), We find that issue involved in such case was on exemption from payment of NCCD whereas the issue before us is whether the appellant is entitled to utilize Cenvat Credit of Basic Excise Duty for payment of NCCD. Therefore the judgment of the Sikkim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice tax leviable under section 66 of the Finance Act; (x) the Education Cess on taxable services leviable under section 91 read with section 95 of the Finance (No.2) Act, 2004 (23 of 2004); and (xa) the Secondary and Higher Education Cess on taxable services leviable under section 136 read with section 140 of the Finance Act, 2007 (22 of 2007); and (xi) the additional duty of excise leviable under section 85 of Finance Act, 2005 (18 of 2005) Provided that the CENVAT credit shall be allowed to be taken of the amount equal to central excise duty paid on the capital goods at the time of debonding of the unit in terms of the para 8 of notification No. 22/2003-Central Excise, published in the Gazette of India, part II, Section 3, sub-section (i),vide number G.S.R. 265(E), dated, the 31st March,2003. paid on- (i) any input or capital goods received in the factory of manufacture of final product or premises of the provider of output service on or after the 10th day of September, 2004; and (ii) any input service received by the manufacturer of final product or by the provider of output services on or after the 10th day of September, 2004, including the said duties, or tax, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or tax relating to that month or the quarter, as the case may be: Provided further that the CENVAT credit of the duty, or service tax, paid on the inputs, or input services, used in the manufacture of final products cleared after availing of the exemption under the following notifications of Government of India in the Ministry of Finance (Department of Revenue),- (i) No. 32/99-Central Excise, dated the 8th July, 1999 [G.S.R. 508(E), dated 8th July, 1999]; (ii) No. 33/99-Central Excise, dated the 8th July, 1999 [G.S.R. 509(E), dated 8th July, 1999]; (iii) No. 39/2001-Central Excise, dated the 31st July, 2001 [G.S.R. 565 (E), dated the 31st July, 2001]; (iv) No. 56/2002-Central Excise, dated 14th November, 2002 [G.S.R. 764(E), dated the 14th November, 2002]; (v) No. 57/2002-Central Excise, dated 14th November, 2002 [G.S.R.. 765(E), dated the14th November, 2002]; (vi) No. 56/2003-Central Excise, dated the 25th June, 2003 [G.S.R. 513 (E), dated the 25th June, 2003]; and (vii) No. 71/2003-Central Excise, dated the 9th September, 2003 [G.S.R. 717 (E), dated the 9th Sep, 2003] shall, respectively, be utilized only for payment of duty on final products, in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credit of the NCC duty leviable under Section 136 of the Finance Act, 2001. To this extent there is no dispute between the parties. 11. Rule 3(4) of the CENVAT Credit Rules is important and this reads as follows : (4) The CENVAT credit may be utilized for payment of - (a) any duty of excise on any final product; or (b) an amount equal to CENVAT credit taken on inputs if such inputs are removed as such or after being partially processed; or (c) an amount equal to the CENVAT credit taken on capital goods if such capital goods are removed as such; or (d) an amount under sub-rule (2) of rule 16 of Central Excise Rules, 2002; or (e) service tax on any output service : Provided that while paying duty of excise or service tax, as the case may be, the CENVAT credit shall be utilized only to the extent such credit is available on the last day of the month or quarter, as the case may be, for payment of duty or tax relating to that month or the quarter, as the case may be : Provided further that the CENVAT credit of the duty, or service tax, paid on the inputs, or input services, used in the manufacture of final products cleared after availing of the exemption under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anufactured by the manufacturer ............. (words not necessary are deleted) Rule 3(7) provides that notwithstanding anything contained in sub-rule (1) and sub-rule (4), CENVAT credit in respect of NCC duty shall be utilized only towards payment of the NCC duty under Section 136 of the Finance Act, 2001 on any final product manufactured by the manufacturer. 13. Insofar as the assessee is concerned the contention urged was that CENVAT credit in respect of NCC duty can be utilized only for payment of NCC duty. But this does not mean that CENVAT credit on basic excise duty cannot be utilized for payment of NCC duty on the final product. Simply put, the contention is that payment of NCC duty through utilization of CENVAT credit on basic excise duty is not prohibited. The question is whether this is permissible or not. According to the Revenue, CENVAT credit on NCC duty can be utilized only for paying NCC duty and CENVAT credit on basic excise duty cannot be utilized for paying NCC duty. 14. On the above broad facts, the matter was adjudicated before the Commissioner of Central Excise at Dibrugarh and he came to the conclusion that CENVAT credit of duty paid on inputs can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the conclusion that CENVAT credit of basic excise duty cannot be utilized for payment of NCC duty on the final product. 19. Under the circumstances the second part of the substantial question of law must be answered in the affirmative and it must be held that while CENVAT credit of NCC duty can be utilized under the CENVAT Credit Rules only towards payment of such NCC duty, CENVAT credit obtained from other sources can be utilized for payment of NCC duty on the final product. 20. The reference is answered accordingly." The Hon'ble High Court, after interpreting Rule 3(4) and Rule 3(7) came to the conclusion that the Cenvat credit can be utilized towards payment of NCCD in Cenvat credit. 6. In view of the above judgment and the discussion made hereinabove, I do not find any infirmity in the order of the Commissioner (Appeals) and the same is upheld. Revenue's appeal is dismissed" 4.2. From the above decisions of this tribunal it can be seen that the utilization of basic excise duty for the payment of NCCD has been allowed considering the provisions of Rule 3 of Cenvat Credit Rules, 2004. As regard the heavy reliance placed by the revenue in the case of M/s. Unic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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