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TMI Blog2007 (7) TMI 509X X X X Extracts X X X X X X X X Extracts X X X X ..... on Cess paid by an 100% EOU. The appellants have purchased inputs from an 100% EOU and availed credit of Education Cess paid by such 100% EOU. It is the contention of the revenue is that the appellant is not eligible to avail Cenvat credit of the Education Cess, which has been paid by the 100% EOU. On the other hand the appellant submits that provisions of Rule 3(7) (a) will be applicable only to Basic Customs Duty and CVD and will not apply to Education Cess. Ld. SDR relies upon the decision of the Hon'ble Supreme Court in the case of Benara Valves Ltd., v. CCE as reported at 2006 (204) E.L.T. 513 for the preposition that prima facie case alone is not enough for passing an interim order. -He specifically emphasized that Hon'ble - Supreme C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 91 read with Section 93 of the Finance (No.2) Act, 2004 (23 of 2004); (vii) the additional duty leviable under Section 3 of the Customs Tariff Act, equivalent to the duty of excise specified under clauses (i) (ii), (iii), (iv), (v) and (vi); (viia) the additional duty leviable under sub-section (5) of Section 3 of the Customs Tariff Act, as substituted by clause 72 of the Finance Bill, 2005, the clause which has by virtue of the declaration made in the said Finance Bill under the Provisional Collection of Taxes Act, 1931 (16 of 1931), the force of law : Provided that a provider of taxable service shall not be eligible to take credit of such additional duty); (viii) the additional duty of excise, leviable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 10th day of September, 2004. Explanation - For the removal of doubts it is clarified that the manufacturer of the final products and the provider of output service shall be allowed Cenvat Credit of additional duty leviable under Section 3 of the Customs Tariff Act on goods falling under heading 9801 of the First Schedule to the Customs Tariff Act." 5. It can be seen from the above reproduced rules that the appellant is eligible to avail the benefit of Cenvat credit. In this case Education Cess is leviable on the excisable goods. On plain reading of the above said Rule, it can be seen that the entire amount of duty paid on such goods, in respect of all types of duties mentioned in the said rules, is permissible as credit to appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der a specific notification. It is the argument of the ld. SDR that the non obstante clause in the beginning of the Rule would be applicable only to BCD and CVD, and hence credit on education cess is not eligible. This proposition, to my mind does not seem to be correct. The legislature in its own wisdom has allowed Cenvat credit to an assessee on the duties paid by a supplier of the inputs in order to reduce cascading effect of the duty. To my mind the provisions of Rule 3(7)(a) does not restrict the credit of excise duty paid on BCD and CVD as worked out. 7. As regards the decision relied upon by the ld. SDR, I find that Hon'ble Supreme Court in para 8 has held as under :- "It is true that on merely establishing a prima facie case, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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