TMI Blog2009 (4) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... n cess shall be a duty of excise. - In the circumstances, I hold that the restriction envisaged in the sub-rule (4) of CCR encompasses also the Cenvat credit of education cess admissible to the assessee on receipt of the capital goods. – In year of receipt, full credit of education cess cannot be taken - E/492/2008/MAS - 393/2009 - Dated:- 3-4-2009 - Shri P. Karthikeyan, Member (T) Shri C. Seethapathy, Advocate, for the Appellant. Shri R.P. Meena, SDR, for the Respondent. [Order]. - Sub-rule 2(a) of Rule 4 of Cenvat Credit Rules, 2004 (CCR) lays down that on receipt of capital goods in a factory, Cenvat credit shall be taken for an amount not exceeding 50% of the duty paid on such capital goods in the same financial year. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same financial year: [Provided further that the CENVAT credit of the additional duty leviable under sub-section (5) of section 3 of the Customs Tariff Act, [* * * *] in respect of capital goods shall be allowed immediately on receipt of the capital goods in the factory of a manufacturer.]" (b) The balance of CENVAT credit may be taken in any financial year subsequent to the financial year in which the capital goods were received in the factory of the manufacturer, or in the premises of the provider of output service, if the capital goods, other than components, spares and accessories, refractories and refractory materials, moulds and dies and goods falling under [heading 6805, grinding wheels and the like, and parts thereof falling u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the financial year of receipt of the capital goods in the factory, if the argument of the appellants is held as correct. Entire education cess will be available only in the next year onwards. The intention of the legislature does not appear to be so. 'Duty' in sub-rule 2(a) of Rule 4 of CCR apparently refers to admissible Cenvat credit, i.e., specified duties and cesses paid on the capital goods. 3. On a perusal of the entire Cenvat scheme the reading of the provisions canvassed by the appellants does not appear to be correct. According to this view, no credit of education cess can be taken in the year of receipt of capital goods. The rules do not define duty for the purpose of Cenvat credit; Cenvat credit defined covers various duties ..... X X X X Extracts X X X X X X X X Extracts X X X X
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