9911796707
TMI Blog2011 (1) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... order. 3. All these appeals arise from a common order passed by the Commissioner (Appeals), Chandigarh on 31-8-2009. By the impugned order, the appeals filed by the respondents against the orders passed by the adjudicating authority on 19-11-2008, 13-2-2009, 1-4-2009 and 13-5-2009 involving common issue have been set aside and the claims of the respondents for refund have been allowed. 4. The details of the claim which was disallowed by the adjudicating authority, the orders which were challenged before the Commissioner (Appeals), were as under : Sl. No. Appeal No. Order-in-original Period involved Amount of refund rejected by the adjudicating authority on account of Edu. & H.S. Edu. Cess paid through BED (in Rs.) Excess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the above chart on account of central excise duty paid through PLA for the months specified in the chart claiming the same in terms of the Notification No. 56/2002-C.E., dated 14-11-2002. The adjudicating authority held that Cenvat credit of basic excise duty available to the party cannot be utilised for payment of education cess as per the provision of sub-rule 7(b) of Rule 3 of the Cenvat Credit Rules, 2004 which provides that the credit of education cess on excisable goods and education cess on taxable service can be utilised either for payment on education cess on excisable goods or for payment of education cess on taxable services. It was further held by the adjudicating authority that the respondents had circumvented the payment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In fact, the provision thereunder expressly used the expression respectively while referring to the utilisation of cess on a particular item to be utilised on a specified item. This clearly shows that the modus operandi adopted by the respondents was not correct in relation to the utilisation of the cenvat credit while availing the benefit of Notification No. 56/2002, dated 14-11-2002. 8. It is true that in Sun Pharmaceutical Industries case, it was held that sub-rule 7(b) of Rule 3 makes it clear that limitation placed in view of utilisation of cenvat credit obtained through education cess paid on inputs and that the said sub-rule has no application at all in regard to utilisation of basic excise duty, the observation, however, runs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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