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2012 (10) TMI 870 - AT - Central ExciseCENVAT Credit on education and higher education cess - non eligibility to claim credit on payment made by 100% EOU on duty of Excise equal to aggregate duties of Customs - demand along with interest and equivalent penalty - Held that:- Even before the amendment to rules was introduced, the Tribunal had already taken a view that education cess paid in full has to be allowed as CENVAT Credit. It has nothing to do with the amendment. There is neither a request from the assessee nor is the issue as to whether the benefit of amendment made w.e.f. 07.09.2009, can be extended for the earlier period. The decision in the case of EMCURE PHARMACEUTICALS LTD. Versus COMMISSINOR OF C. EX., PUNE [2008 (1) TMI 147 - CESTAT, MUMBAI] had considered the statutory provisions in detail and had come to a conclusion and it cannot be said that there were decisions of a higher judicial forum or a provision of law or relevant facts which have been ignored or not considered, despite having been submitted. In such a situation, the decision cannot be said to be per incurium especially when the statute was amended subsequently - against revenue.
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