TMI Blog2010 (3) TMI 537X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal against the Order No. 3/Commissioner/CE/Kol-Voo/Adjn/2007-08, dated 23-8-2007 passed by Commissioner of Central Excise, Kolkata-VII. 2. Heard both sides. 3. The Appellant is a manufacturer of Jute Yarn falling under Heading No. 53.07 and Jute Hessian/Sacking Bags falling under Heading No. 63.05 of the CETA'85. The Appellant procured inputs which have suffered Basic Excise Duty, Additional Excise Duty and Education Cess. The Appellant did not take any Credit of Basic Excise Duty and Additional Excise Duty paid on the inputs. However, they took CENVAT Credit of Education Cess paid on the inputs. While clearing the final products, they availed the benefit of exemption Notification No. 30/04-C.E. dated 9-7-04. The said Notification is subject to the condition that "Nothing contained in this Notification shall apply to the goods in respect of which credit of duty on inputs has been taken under the provisions of the CENVAT Credit Rules, 2002." During the course of Audit, it was pointed out to the Appellant that inasmuch as they have taken Credit amounting to Rs. 1,93,715,00 relating to the period, October, 2004 to August, 2006, they have not fulfilled the conditions of the No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Water (P) Ltd. v. Union of India - 2004 (174) E.L.T. 422 (All); (c) Franco Italian Ltd. v. CCE - 2000 (120) E.L.T. 792 (Tri.-.LB); (d) CCE v. Swastik Vegetable Oil Products Ltd. - 2004 (168) E.L.T. 206 (T); Thirdly, he submits that a substantial portion of the demand is barred by limitation. The fact that they were taking CENVAT Credit of Cess and utilising the same for paying Education Cess on Jute Cess was made known to the Department by the periodical returns filed by them. Under these circumstances, the finding of the Commissioner that the Assessee ignored the pre-condition and went on to avail of the double benefit, was not justified. At any rate, there could be no intention to avail the benefit of about Rs. 2.00 lakh knowing well that the demand of this nature would be a consequence. Therefore, he submits that there is no justification for invoking the extended period of limitation for demand of Duty and for imposition of penalty. Fourthly, he submits that if the demand on the final product, is to be confirmed on the ground that the Education Cess has been taken as a Credit, then the Credit of Basic Excise Duty and Additional Excise Duty should be made av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Central Excise Act with effect from 13-5-2005. Inasmuch as the Notification No. 30/04-C.E. is a conditional Notification, having opted to avail the benefit of the Notification, they are bound to fulfill the conditions and when the conditions are not fulfilled, they have to face the consequence. He relies on the following decisions in this regard :- (i) Novopan India Ltd. v. CCE Cus., Hyderabad - 1994 (73) E.L.T. 769 (S.C.); (ii) Union of India v. Ganesh Metal Processors Industries - 2003 (151) E.L.T. 21 (S.C.); (iii) Hind Lamps Ltd. v. CCE, Kanpur - vide Final Order No. 734/09-EX dated 27-8-09 in Excise Appeal No. 146/2005 - passed by CESTAT, Principal Bench, New Delhi [2010 (250) E.L.T. 237 (Tribunal)]. 5.3 Regarding the time-bar, he reiterates the findings of the Commissioner. Regarding the alternative plea on behalf of the Appellant, for extending the benefit of credit of Basic Excise Duty and Additional Excise Duty, he seeks decision on merits. 6. We have carefully considered the submissions from both sides and perused the records. Relevant portion of the Notification No. 30/2004-C.E. is reproduced below :- "In exercise of the powers confe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the CENVAT Credit Rules. As rightly pointed out by the learned Jt. C.D.R. the Education Cess has been imposed under the Finance Act, 2004 and Section 93 of the said Act clearly mentioned the Education Cess as being a Duty of Excise on the goods manufactured or produced. Only in view of the same, the Credit of Education Cess is being made available in terms of Rule 3 of the CENVAT Credit Rules. Since the Education Cess is also a Duty of Excise and since the Appellant has taken the Credit of Education Cess paid on the inputs, it has to be held that the Appellant has availed the Credit of Duty on the inputs under the CENVAT Credit Rules. The Appellant undisputedly has not taken the Credit of Duties of Excise paid on the inputs. The decision of the Hon'ble Supreme Court in the case of Ganesh Metal Processors Industries (cited supra), rendered in the context of Notification No. 202/88-C.E. which contained the proviso to the Notification prescribing a condition to the effect that - no Credit of Duty paid on inputs has been taken under Rule 56A or 57A of the said Rules - is relevant to this case. It has been held by the Hon'ble Supreme Court in the said case that the Notification has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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