TMI Blog2012 (10) TMI 870X X X X Extracts X X X X X X X X Extracts X X X X ..... decision in the case of EMCURE PHARMACEUTICALS LTD. Versus COMMISSINOR OF C. EX., PUNE [2008 (1) TMI 147 - CESTAT, MUMBAI] had considered the statutory provisions in detail and had come to a conclusion and it cannot be said that there were decisions of a higher judicial forum or a provision of law or relevant facts which have been ignored or not considered, despite having been submitted. In such a situation, the decision cannot be said to be per incurium especially when the statute was amended subsequently - against revenue. - E/353/2011; & E/CO/67/2011 - A/1542-1543/2012-WZB/AHD - Dated:- 22-10-2012 - MR. B.S.V. MURTHY, J. Represented by: For Assessee: Shri S.J. Vyas, Adv. For Revenue: Shri S.K. Mall, A.R. Per: B.S.V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions and the records. In the normal course, it would have been sufficient to rely upon the decision in the case of Emcure Pharmaceuticals Ltd since there is no dispute that the decision of the Tribunal is applicable to the facts of this case also. Nevertheless, the ld.A.R. submitted that Emcure Pharmaceuticals Ltd s decision is not applicable and presented detailed arguments. Therefore, I proceed to consider the submissions made by ld.A.R. and examine whether Emcure Pharmaceuticals Ltd s decision is to be followed or not. 4. Before proceeding further, it would be appropriate to reproduce Rule (7)(a) of CENVAT Credit Rules, which is the subject matter of the dispute, as it existed after 07.09.2009 is as under:- (7) Notwithstanding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty under section 3 of the Excise Act read with serial number 2 of the notification no. 23/2003-Central Excise dated 31st March, 2003 [G.S.R. 266(E), dated the 31st March, 2003] shall be equal to {X multiplied by [(1+BCD/200) multiplied by (CVD/100)]}. Provided further that the CENVAT credit in respect of inputs and capital goods cleared on or after the 7th September, 2009 from an export-oriented undertaking or by a unit in Electronic Hardware Technology Park or in a Software Technology Park, as the case may be, on which such undertaking or unit has paid (A) excise duty leviable under section 3 of the Excise Act read with serial number 2 of the notification no. 23/2003-Central Excise, dated 31st March, 2003 [G.S.R. 266(E), dated the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gislature was to allow the CENVAT Credit of education cess prior to 07.09.2009, there was no need to amend the rule since the decision in the case of Emcure Pharmaceuticals Ltd was already available and a view had already been taken that credit would be admissible. He further relied upon the decision in the case of Bansal Wire Industries Ltd 2011 (269) ELT 145 (SC), Madura Coats Ltd 2003 (161) ELT 812 (Tri-Chennai), Central Board of Dawoodi Bohra Community 2010 (254) ELT 196 (SC). He relied upon the decision in the case of Madura Coats to submit that right to education cess as CENVAT Credit was created on 07.09.2009 and therefore it cannot be said to be clarificatory since it is a substantive right and therefore the same would not be admiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout taking amendment into account to see its correctness and not taking the amendment made subsequently into consideration to consider previous decision. 7. I find myself in agreement with the submissions made by ld.Counsel for the respondents. Since the amended provisions of the rules were not there, it cannot be said that the decision in the case of Emcure Pharmaceuticals Ltd is per incurium because in the light of subsequent amendment, the benefit became available. What is required to be considered is whether the Tribunal is required to follow the decision in the case of Emcure Pharmaceuticals Ltd or not. In my opinion, the ld.A.R. has not been able to make out a case on this issue. The decision of the Tribunal in the case of Madura ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uently by amendment. This decision would apply only when a decision of the Tribunal or a Court rendered existing provisions in Notification/Rule/Section redundant. Therefore, this decision is also not applicable to the facts of this case. As regards treating the decision of the Tribunal per incurium, the question does not arise in this case because the decision in the case of Emcure Pharmaceuticals Ltd had considered the statutory provisions in detail and had come to a conclusion and it cannot be said that there were decisions of a higher judicial forum or a provision of law or relevant facts which have been ignored or not considered, despite having been submitted. In such a situation, the decision cannot be said to be per incurium especial ..... X X X X Extracts X X X X X X X X Extracts X X X X
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