TMI Blog2011 (11) TMI 565X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates that credit of cess is allowable under the main provision of Rule 3(1)(vi) and (via) of the Cenvat Credit Rules, 2004. He further states that the restriction placed under Rule 3(7) of the said Rules is only intended to prohibit a manufacturer from taking credit of that portion of the duty which is equal to the Basic Customs Duty. He also states that since an importer gets credit of the entire amount of Additional Customs Duty inclusive of excise duty and cess on excise duty it would be equitable to allow credit of excise cess in this case also. He also cites the decision of the Tribunal in the case of Emcure Pharmaceuticals Pvt. Ltd. v. Commissioner of Central Excise [2008 (225) E.L.T. 513] where credit of Education Cess has been allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under S.No. 2 of the Table under Notification No. 23/2003-C.E., dated 31-3-2003, the restriction under the proviso to Rule 3(7) of the Cenvat Credit Rules, 2004 comes into play as the period involved in this case is between June, 2007 to December, 2008. As has been argued by the learned advocate, there is no dispute that the restriction placed under sub-rule 7(3) is intended to prohibit a manufacturer from taking credit of that portion of the duty which is equivalent to the Basic Customs Duty. This provision is required so as not to give any undue advantage in respect of any supplies from the EOUs since in the case of imported goods, there is no provision for taking credit of the Basic Customs Duty paid on the imported inputs. As regards t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Cenvat Credit Rules, 2004 although there is a restriction regarding utilization of various credits. On the other hand, Rule 3(1) does allow taking of credit of cess specifically. I also find that in the case Emcure Pharmaceutical cited supra, credit of cess has been allowed though entirely for different reasons. 7. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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