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2011 (11) TMI 565 - AT - Central ExciseAvailment of Cenvat Credit Rules, 2004 - Rule 3(1)(vi) and (via) - calculation of Additional Customs Duty included duty of excise and Educational Cess - Held that:- there is no error in the calculation of duty of excise amounts as reflected in the suppliers’ invoices and as admitted in the course of hearing by both sides. There are cases, where the suppliers have not availed of the exemption under Notification No. 23/2003 (S.No. 2) and as such, in respect of such cases, the question of applying the restriction under Rule 3(7) of the Cenvat Credit Rules, 2004 does not arise as the application of the said Rule is conditional upon availing such exemption. Hence in respect of supplies for which no exemption has been availed, the appellants are correct in taking credit of the entire amount of duty equivalent to the excise duty and cess. As regards the appeals filed by the department, the manner of calculation has been examined in the course of hearing and both sides agree that while applying the formula specified in sub-rule 7(3) of the Cenvat Credit Rules, 2004, the Basic Customs Duty and the Additional Duty of Customs should be taken as the amount leviable as has been taken by the suppliers for the purpose of calculating the duty amounts. In other words, the Basic Customs Duty for the purpose of working out the formula should be taken as 5% which was the rate at which the Basic Customs Duty was leviable at the material time - appellant-assessees are allowed holding that they are entitled to credit of cess paid forming part of the Additional Customs Duty on the inputs; and all the six appeals filed by the department are rejected. It is also clarified that the appellant-assessees are also entitled, in addition, to credit of the final cess paid on the entire amount of excise duty in respect of the inputs supplied from the EOUs - Decided against Revenue.
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