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2014 (11) TMI 706 - AT - Central ExciseCENVAT Credit on inputs procured from 100% EOU - Quantum of Additional Customs Duty included duty of excise and Educational Cess - what will be the admissible credit on inputs which are received by the appellant from 100% EOU s under Notification 23/2003-CE dated 31.3.2013 - Invocation of extended period of limitation - Held that:- Cenvat credit of Cesses was admissible before the amendment also. So far as calculation of admissible CENVAT credit, as per formula prescribed under Rule 3(7)(a) of the Cenvat Credit Rules, 2004 is concerned, appellant argued that elements of Education Cess and SHE Cess has to be considered as a part of CVD only. Appellant has relied upon the case laws of Shri Venketeshvara Precision Components vs. CCE Chennai (2010 (8) TMI 243 - CESTAT, CHENNAI) and CCE Chennai vs. Jumbo Bags Limited (2011 (11) TMI 565 - CESTAT CHENNAI). Since the amended provisions of the rules were not there, it cannot be said that the decision in the case of Emcure Pharmaceuticals Ltd. is per incurium because in the light of subsequent amendment, the benefit became available. What is required to be considered is whether the Tribunal is required to follow the decision in the case of Emcure Pharmaceuticals Ltd. or not. In my opinion, the ld. AR has not been able to make out a case on this issue. manner of taking CENVAT credit of inputs received from 100% EOU was complicated and contentious. That different views were being expressed on the issue, therefore, extended period cannot be invoked and there is no case for imposing penalties. It is observed from the case laws relied upon by the appellant that the issue of taking CENVAT credit on inputs received from 100% EOU under Notification No. 23/2003-CE and method of calculating admissible credit as per Rule 3(7) (a) formula was disputed, therefore, no intention to evade payment of duty can be attributed on the part of the appellant. Accordingly, it is held that extended period is not applicable to the present facts and circumstances of case. Accordingly, penalties can also not be imposed upon the appellant - Decided in favour of assessee.
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