TMI Blog2014 (11) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... h excise duty also include elements of customs duties. Therefore, the entire duty paid on the invoices will have to be considered as Central Excise duty paid under Section 3(1) of the Central Excise Act, 1944. It is not the case of the Revenue in these proceedings that CENVAT credit of the excise duty paid by the 100% EOU was required to be reduced under any other provisions of the Cenvat Credit Rules, 2004 - Decided in favour of assessee. - Appeal No. : E/277/2011 - ORDER No. A/11698/2014 - Dated:- 25-9-2014 - Mr. M.V. Ravindran and Mr. H.K. Thakur, JJ. For the Appellant : Shri P.M. Dave, Advocate For the Respondent : Shri Alok Srivastava, A.R. JUDGEMENT Per : Mr. H.K. Thakur; This appeal has been filed by appellant M/s. Gopala Polyplast Limited, Kalol, District- Gandhinagar, Gujarat against the OIO No.04-05/COMMR/2011 dated 12.01.2011/13.01.2011 passed by Commissioner of Central Excise, Ahmedabad. The issue involved in these proceedings is whether appellant is eligible to take CENVAT credit under Rule 3(1) of the Cenvat Credit Rules, 2004 for the entire duty paid by a 100% EOU under proviso to Section 3(1) of the Central Excise Act, 1944. 2. Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iii) Balrampur Chini Mills Limited - [2014 (300) ELT 449 (Tri.Del)] (iv) Garg Pharmaceuticals (P) Ltd. -[2013(297) ELT 391 (Tri. Del)] 3. Shri Alok Srivastava (AR) appearing on behalf of the Revenue during hearing and in the written submissions argued that Rule 3(1) of the Cenvat Credit Rules, 2004 permits credit only with respect to duties of excise where as the duties paid by 100% EOU also include elements Basic Customs duties and the Cess paid on that as per proviso to Section 3(1) of the Central Excise Act, 1944. Learned AR made the bench go through the invoices issued by the 100% EOU to emphasise that the duty paid by the appellant also include Basic Customs duty and Cesses paid on basic customs duty which is not eligible to CENVAT credit under 3(1) of the Cenvat Credit Rules, 2004. It was his case that duties paid under the First Schedule Central Excise Tariff Act, 1985 are only admissible for cenvat credit. He relied upon the case law of S. Sundaram Pillai etc. vs. V.R. Pattabiraman etc [1985 AIR 582/1985 SCR (2) 643] to drive home the point that a proviso cannot expand the main provisions/ interpretation of the Act. That a proviso to charging Section 3 (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f customs which would be leviable under the Customs Act, 1962 (52 of 1962) or any other law for the time being in force, on like goods produced or manufactured outside India if imported into India, and where the said duties of customs are chargeable by reference to their value; the value of such excisable goods shall, notwithstanding anything contained in any other provision of this Act, be determined in accordance with the provisions of the Customs Act, 1962 (52 of 1962) and the Customs Tariff Act, 1975 (51 of 1975). 4.2 Rule 3(1) of the Cenvat Credit Rules, 2004 reads as follows:- Rule 3. CENVAT credit. -- (1) A manufacturer or producer of final products or a provider of taxable service shall be allowed to take credit (hereinafter referred to as the CENVAT credit) of (i) the duty of excise specified in the First Schedule to the Excise Tariff Act, leviable under the Excise Act; 5. Revenue has relied upon the case law of the Apex Court to the effect that a proviso cannot enlarge the scope of the main Section and no CENVAT credit of duty other than paid under First Schedule to Central Excise Tariff Act, 1985, is eligible. If the view put forth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble and paid on such input or capital goods. The same has nothing to do with the amount of exemption availed of by the manufacturer of the inputs in respect of the excise duty payable by it. Since the actual amount of additional duty paid by the respondent has not been brought on record the method adopted by Commissioner (Appeals) appears to be proper and reasonable. 5.1 CESTAT Delhi in the case of Amtek Auto Limited vs. CCE, Delhi [2013 (292) ELT 236 (Tri. Del.)], after relying upon the judgment of Supreme Court in the case of Commissioner vs. Suresh Synthetics [2007 (216) ELT 662 (S.C.)], held as follows in Para 3 4 :- 3. After hearing both the sides, I find that in terms of provisions of Section 3 of Central Excise Act, 1944, a 100% EOU, when clearing the goods in DTA is required to clear the same on payment of Excise duty. The measure of such duty shall be equal to the amount of Customs duty which would be leviable under Customs Act, 1962 or in any other law for the time being imposed on like goods produced or manufactured, outside India if imported into India. As such what is required to be paid by a 100% EOU is Central Excise duty and not Customs duty. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... customs duty actually paid. In fact, as noted above what is paid is only Excise duty and of additional duty of Customs under Section 3 of the CTA, 1975 and what the law requires is that the benefit should be restricted to the additional duty leviable. This aspect of the matter has been carefully taken note of by the Larger Bench in the cited judgment wherein it is held that The reading of the first proviso to Notification 5/94 does not indicate at all that the credit of specified duty shall be restricted to the components of additional customs duty actually paid by 100% EOU as excise duty. Further, the question of restricting the benefit to the additional duty actually paid (emphasis supplied by us) under Section 3 of the CTA, 1975 does not arise because there is no payment of additional duty of Customs and what was paid was only Central Excise duty. We are, therefore, of the considered opinion that the issue is no longer res-integra as the issue has already been settled by the Larger Bench judgment cited supra and judicial discipline requires that we follow the law laid down by the Larger Bench unless contrary judgment by a higher judicial forum is cited before us. Further, we ..... 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