TMI Blog2012 (8) TMI 506X X X X Extracts X X X X X X X X Extracts X X X X ..... - Mr. M.V. Ravindaran, J. For Appellant : Shri B.V. Joshi, A.R. For Respondent : Shri S.J. Vyas, Advocate Per : Mr. M.V. Ravindaran; This appeal is filed by the Revenue against the order in appeal No. SKSS/261-263/DMN/NDMN/2010-11 dated 25.11.2010. 2. Heard both sides and perused the record. 3. The issue involved in this case is whether the Education Cess and Secondary and Higher Education Cess paid by the 100% EOU can be taken as credit in full by the recipient manufacturing unit or it has to be limited to the extent as determined by a formula provided in Rule 3 (7) (a) of the Cenvat Credit Rules, 2004. 4. The first appellate authority has held that the Education Cess and Secondary and Higher Education Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CVD component of the total duty paid by 100% EOU availing the exemption under Sr. No. 2 of Notification No. 23/2003-CE dated 31.3.2003. 3. It was submitted by the assessee that the restriction on availment and utilization imposed under Rule 3(7)(5) was limited to duties paid by 100% EOU towards basic customs duty and CVD. For a better understanding, Rule 3(7) (a) is reproduced below:- (7) Notwithstanding anything contained in sub-rule (1) and sub-rule (4),- (a) CENVAT credit in respect of inputs or capital goods produced or manufactured, by a hundred per cent. export-oriented undertaking or by a unit in an Electronic Hardware Technology Park or in a Software Technology Park other than a unit which pays excise duty levied under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty and CVD. The Tribunal in the case of Emcure Pharmaceuticals Limited vsl CCE Pune reported in 2008 (225) ELT 513 (Tri. Mumbai.) has dealt with this issue in detail which has been relied upon by the Commissioner (Appeals) also. The Tribunal was very categorical in opining that the assessees can avail credit of Education Cess over goods supplied to them by 100%EOU and Rule 3(7)(a) ibid does not bar the same. I may reproduce the relevant portion of the Tribunal s order for the purpose of clarity which is as follow:- 5. Rule 3(1) allows a manufacturer to take credit of specified duties paid on inputs or capital goods or input services and Rule 3(4) allows a manufacturer to utilise such credit for payment of excise duty on final produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver some contrary provisions that may be found in the same enactment or some other enactment, and not all provisions contained therein. My view is fortified by the Apex Court s decision in UOI v. G.M. Kokil - (1984) Supp SCC 196, wherein the Apex Court has held as under :- Section 70, so far as is relevant, says the provisions of the Factories Act shall, notwithstanding anything contained in that Act, apply to all persons employed in and in connection with a factory . It is well-known that a non obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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