TMI Blog2013 (9) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - E/736 of 2011-EX(SM) - Final Order No. 56755/2013-SM(BR)(PB) - Dated:- 30-5-2013 - Rakesh Kumar, J. For the Appellant : Shri Rakesh K Mathur, AR For the Respondent : Shri Jatin Singhal, Adv. PER : Rakesh Kumar The facts leading to this appeal are as under:- 1.1 The appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed. 2. Heard both the sides. 3. Shri Jatin Singhal, learned Counsel for the appellant, pleaded that the inputs received by the appellant from 100% EOU have suffered duty under S.No.1 of Notification No. 23/03-CE and not under S.No.2 and as such the duty suffered on goods is basic customs duty plus additional customs duty plus education cess; that the appellant have confined the Cenvat credit availment only to the additional Customs duty component, and education cess and secondary and higher education cess (S H cess), that the provisions of Rule 3(7)(a) prescribing a formula for determining Cenvat credit available in respect of inputs received from a 100% EOU are applicable only when the inputs received, from a 100 EOU have suffered duty under S.No.2 of the Notification No. 23/2003, as all the provisions of this sub-rule are in respect of inputs received from 100% EOU on which the duty has been paid under S.No.2 of the table to the Notification No. 23/03-CE, that since in this case the inputs, in question, had suffered duty under S.No.1 of the notification, the provisions of the rule 3(7)(a) are not applicable; that this plea was made before the original adjudicating autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service, in any other place in India in case the unit pays excise duty under section 3 of the Excise Act read with serial number 2 of the notification No.23/2003-Central Excise, dated the 31st March, 2003 [GSR 266 (E), dated the 31st March, 2003], shall be admissible equivalent to the amount calculated in the following manner namely:- Fifty per cent of {X multiplied by(1+BCD/100) multiplied by (CVD/100)}, where BCD and CVD denote ad valorem rates, in per cent, on basic customs duty and additional duty of customs leviable on the inputs or the capital goods respectively and X denotes the assessable value: [Provided that the CENVAT credit in respect of inputs and capital goods cleared on or after 1st March, 2006 from an export oriented undertaking or by a unit in Electronic Hardware Technology Park or in a Software Technology Park, as the case may be, on which such unit pays excise duty under section 3 of the Excise Act read with serial number 2 of the notification no. 23/2003 -Central Excise, dated 31st March, 2003 [GSR. 266(E), dated the 31st March, 2003] shad be equal to {X multiplied by [(1+BCD/200) multiplied by (CVD/100)]}. Provided further that the CENVAT credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .03.2006 50% of duty leviable under sec. 3 of Central Excise Act, 1944 i.e. 50% of (XBCD/100)+x(1+BCD/100)(1+CVD/100) 50% of X multiplied by (1+BCD/100) multiplied by(1+CVD/100), where X denotes the assessable Value and BCD and CVD denote the rate of basic custom duty and Additional custom duty respectively 01.03.2006 to 04.12.2008 Aggregate of duties of customs leviable on like goods as if- (a) duty of customs specified in 1st scheduled to customs Tariff Act read with any other notification enforce reduced by 75% and (b) no additional custom duty leviable under Se 3(5) of custom Tariff Act, i.e. (XBCD/400)+x( 1+BCD/400)(1+CVD/100) X(1+BCD/400)(CVD/100) When X denotes the assessable value of the goods. From 5/12/08 to 7/7/09 Aggregate of duties of customs leviable on like goods as if- (a) duty of customs specified in the 1st scheduled customs Tariff Act, read with any other notification in force, was reduced by 50% and (b) no additional custom duty leviable under sec 3(5) of the custom Tariff Act i.e. XBCD/200+x(1+BCD/200)(CVD-100) x(1+BCD/200)(CVD/100) When X denotes the assessable value, Thus when the duty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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