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TYCHE INDUSTRIES LTD. Versus COMMISSIONER OF C. EX., VISAKHAPATNAM

2010 (2) TMI 1125 - CESTAT BANGALORE

CENVAT credit - whether the appellant is eligible to avail Cenvat credit on the entire amount of Education Cess paid on CVD by 100% EOU? - N/N. 23/2003-C.E., dated 31-3-2003 - Held that: - appellants are entitled to avail 100% credit of Education Cess on the goods supplied to them by a 100% EOU - appeal allowed - decided in favor of appellant. - E/118 & 455/2009 - Final Order Nos. 581-582/2010 - Dated:- 26-2-2010 - Shri M.V. Ravindran, Member (J) Shri B. Seetha Ramaiah, Consultant, for the Appel .....

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by 100% EOU. The Revenue s contention is that in terms of the Notification No. 23/2003-C.E., dated 31-3-2003, the appellant is entitled to avail Cenvat credit up to 50% of Education Cess paid by a 100% EOU. 4. The learned Consultant appearing on behalf of the appellant submits that the issue is squarely settled by this Bench s decision in the case of Shreya Pets Pvt. Ltd. v. CCE., Hyderabad-IV [2009 (240) E.L.T. 408 (Tri.-Bang.)]. 5.  On a careful consideration of the submissions made .....

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sue is no longer res integra and the Mumbai Bench in the case of Emcure Pharmaceuticals Ltd. v. CCE, Pune - 2008 (225) E.L.T. 513 (Tri-Mumbai) has held that assessee is eligible to take credit of Education Cess over the goods supplied to them by 100% EOU in terms of Rule 3(7)(a) and the provisions of Rule 3(7)(b) of the Cenvat Credit Rules. The learned Vice-President has followed the Larger Bench judgment rendered in the case of Das and Co. v. Collector - 2000 (121) E.L.T. 275 (Tribunal-LB) and .....

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en therein. However, this stand is not tenable for the reason that the 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 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, s .....

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stante clause in Section 70, namely, notwithstanding anything contained in that Act must mean notwithstanding 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 .....

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ges under Section 59 of that Act read with Section 70 of the Bombay Shops and Establishments Act, 1948. The above decision has been followed by the larger bench of the Tribunal in Das & Co. v. CCE, 2000 (121) E.L.T. 275, holding that a non obstante clause is used where contrary provisions exist. Similar view has been expressed by the apex court in the case of Jindal Poly Films Ltd. v. CCE, 2006 (198) E.L.T. 3 (S.C.) in the context of the Modvat Rules. Rule 3(1) is applicable to all manufactu .....

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