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2023 (9) TMI 58 - AT - Central ExciseUtilization of BED utilized for payment of EC and SHEC while availing area based exemption in contravention of Rule 3(7)(b) of the CCR, 2004 - wilful evasion on part of the appellant in payment of EC and SHEC - N/N. 20/2008-CE dated 27.03.2008 - HELD THAT:- On going through the decision of the Hon’ble Apex Court wherein the appeals have been disposed off in the light of the decision of the Hon’ble Apex Court in the case of SRD Nutrients [2017 (11) TMI 655 - SUPREME COURT]. In the case of SRD Nutrients the issue is before the Hon’ble Apex Court is whether the refund of EC & SHEC is available to the assesse paid through PLA availing area based exemption or not, where it was held that appellants were entitled to refund of Education Cess and Higher Education Cess which was paid along with excise duty once the excise duty itself was exempted from levy - Although the said decision has been examined by the Hon’ble Apex Court in the case of Unicorn Industries Vs. Union of India [2019 (12) TMI 286 - SUPREME COURT], which has been disposed off in the light of the decision of the Hon’ble Apex Court in the case of SRD Nutrients. The issue whether the BCD can be utilised for payment of EC & SHEC was not examined by the Hon’ble Apex Court in the case of Hitachi Home [2018 (9) TMI 383 - SC ORDER]. Now, the jurisdictional High Court of Guwahati has an occasion to examine the issue in hand in the case of UNION OF INDIA VERSUS KAMAKHYA COSMETICS & PHARMACEUTICAL PVT. LTD. [2012 (7) TMI 902 - GAUHATI HIGH COURT], wherein the Hon’ble High Court has held there was no bar to utilize Cenvat credit of Basic Excise Duty for payment of Education Cess. Thus, the appellants are entitled to utilise the cenvat credit of BED for payment of EC and SHEC - impugned order set aside - appeal allowed.
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