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2013 (8) TMI 956 - AT - Central Excise100% EOU - CENVAT Credit on the 3rd education cess paid - Service recipient - Held that:- If education cess on CVD portion is admissible, 3rd time cess which is payable according to the Department on the ground that what is required to be paid by the 100% EOU is excise duty and the total excise duty arises only after calculation of equal amount to customs duty and therefore the 3rd time cess should be paid supports the assessee’s case. If the 3rd education cess is considered as a levy on total excise duty, the obvious conclusion would be that the credit also admissible - credit allowed. Whether the appellant is eligible for Cenvat credit on education cess paid to the extent of full amount or not? - Held that:- The decision of the Tribunal in Emcure Pharmaceuticals Ltd. [2008 (1) TMI 147 - CESTAT, MUMBAI] case is squarely applicable in respect of the Cenvat credit of education cess in respect of the appellant - credit allowed. Whether the appellant can take Cenvat credit of excise duty paid equal to the amount of cess paid on the additional customs duty or the amount calculated in accordance with formula as per Rule 3(7)(a) of CCR? - Held that:- When the statutory provisions clearly provide that appellant can take credit as per the formula, the question of availing the credit equal to the additional duty indicated in the invoice does not arise as far as credit of duty is concerned - the credit of ₹ 82,965/- availed by the appellant is clearly not admissible and therefore is required to be paid back - credit cannot be allowed. Appeal allowed in part.
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