TMI Blog2011 (4) TMI 834X X X X Extracts X X X X X X X X Extracts X X X X ..... ritten submission Per: Dr. P. Babu: M/s. Cello Plastotech, Daman were engaged in the manufacture of household articles and availing the benefit of cenvat credit of duty paid on inputs. It was found that they were procuring inputs from 100% EOU and had availed cenvat credit including Educational Cess and S H.E. Cess are as per the Revenue s contention was an excess credit availed by them. On adjudication the original adjudicating authority disallowed the credit availed on Educational Cess and S H. E. Cess. On appeal by the assessee, the Commissioner (Appeals) set aside the Order-in-Original and allowed the credit. The present appeal is filed by the Revenue against this order. 2. The issue to be decided in the present case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2003] and used in the manufacture of the final products or in providing an output service, in any other place in India, in case the unit pays excise duty under section 3 of the Excise Act read with serial number 2 of the notification No. 23/2003-Central Excise, dated the 31st March, 2003, [G.S.R. 266(E), dated the 31st March, 2003], shall be admissible equivalent to the amount calculated in the following manner, namely:- Fifty per cent. of [X multiplied by {(1+BCD/100) multiplied by (CVD/100)}], where BCD and CVD denote ad valorem rates, in per cent., of basic customs duty and additional duty of customs leviable on the inputs or the capital goods respectively and X denotes the assessable value: Provided that the CENVAT credit in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mula specified under Rule 3(7)(a) only in respect of basic excise duty levied under Section 3 of the Central Excise Act. Rule 3(7) (a) does not cover all duties paid by EOU as it refers only to availment of credit of duty paid by EOU under Section 3 of the Central Excise Act, 1944. The rule refers to Notification 23/2003-C.E. which exempts duty leviable under Section 3 of the Central Excise Act, 1944 and nowhere refers to the Finance Act under which education cess is levied. From this, it appears that the objective of the legislature was to restrict availment of credit of BED paid by an EOU and not to restrict availment of credit of other duties leviable under the Finance Act, 1944 (Education Cess) and National Calamity Contingent Duty Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anything to the contrary contained in that Act and as such it must refer to the exempting provisions which would be contrary to the general applicability of the Act. In other words, as all the relevant provisions the Act are made applicable to a factory notwithstanding anything to the contrary contained in it, it must have the effect of excluding the operation of the exemption provisions. Just as because of the non-obstante clause the Act is applicable even to employees in the factory who might not be workers under Section 2(1), the same non-obstante clause will keep away the applicability of exemption provisions qua all those working in the factory. The Labour Court, in our view, was, therefore, right in taking the view that because of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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