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2013 (9) TMI 171 - AT - Central Excise100% EOU - CENVAT Credit - Notification No. 23/2003 - The appellant availed Cenvat credit of excise duty paid on inputs and capital goods as per the provisions of Cenvat credit Rules, 2004 - The inputs received were the DTA clearances of a 100% EOU – The appellant had taken Cenvat credit of the Additional Customs duty component plus education cess of the total duty paid on the inputs received from 100% EOU - Whether the provisions of Rule 3(7)(a) restricting the availment of Cenvat credit as per formula prescribed would be applicable, in respect of inputs received from a 100% EOU when the inputs received from the 100% EOU have suffered duty under S. No. 1 of the table to the Notification No. 23/2003 - Held that:- Appellant plea was that the duty on the inputs has been paid under S. No. 1 of the table to the notification No. 23/2003 - they had correctly taken the Cenvat credit of Additional Customs duty component and education and S & H cess - However, if the inputs received from the 100% EOU have suffered duty in terms of S. No. 2 of the table to notification No. 23/2003 - the Cenvat Credit entitlement would be as per the formulas prescribed is Rule 3 (7)(a) - Since no finding had been given on the Appellant's plea that the inputs received from the 100% EOU had suffered duty in terms of S. No. 1 of the table to the notification No.23/03-CE. The Plea taken by assesse required to be examined for which the matter was remanded back - Order was set aside and the matter was remanded to the original adjudication authority for de-novo decision - If the claim of the Appellant was correct their Cenvat credit availment would be Correct and the formula prescribed is Rule 3(7)(a) would not be applicable - The formulas would be applicable only if the inputs received from a 100% EOU, had suffered duty in terms of S. No. 2 of the table to the notification No. 23/2003 – Decided in favour of assesse.
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