TMI Blog2014 (4) TMI 1068X X X X Extracts X X X X X X X X Extracts X X X X ..... ervices. The provisions of Rule 3(4), appear to indicate a distinction between duties of excise and tax on services. This is so in view of the relevant provisions emplying both the words “duty” and “tax” distinctly. - what is prohibited for remittance of NCCD is credit of any duty specified in sub-rule (1) except NCCD and that would mean duties of excise but not service tax leviable and exigible under the provisions of the Finance Act, 1994. On this analyses the impugned order is prima facie unsustainable. We therefore grant waiver of pre-deposit in full and stay all further proceedings for realisation of the assessed liability, pending disposal of the appeal - Stay granted. - E/58374/2013 - Stay Order No. S/51445/2014-EX(DB) - Dated:- 21- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f final products or a provider of taxable service shall be allowed to take credit. Included herein are Duty of Excise specified in the First Schedule to the Excise Tariff Act, leviable under the Central Excise Act, 1944; similar duties of excise specified in the Second Schedule to the Excise Tariff Act, leviable under the 1944 Act; Additional Duties of Excise; NCCD leviable under Section 136 of the Finance Act, 2001; Education Cess and Secondary and Higher Education Cess; Additional Duty leviable under Section 3 of the Customs Tariff Act and Service Tax leviable under Section 66 of the Finance Act, 1994 and Education Cesses leviable under the provision of the 1944 Act. Rules 3(4) specifies that Cenvat credit may be utilised for payment of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant contends that since several relevant provisions of the Rules, in particular sub-rule (4) thereof, use the expressions duty and tax distinctly, duty to refer to in Central Excise and tax to refer to service tax, leviable under the provisions of the 1994 Act, the prohibition against utilisation of duty for remittance of NCCD could be understood as of Central Excise duty and not the credit of service tax. Reliance for this proposition is placed on the definition of duty in Rule 2(e) of the Central Excise Rules, 2002 which clarifies that the duty means the duty payable under Section 3 of the Central Excise Act. Reliance is also placed on the decision of the Supreme Court in The Member, Board of Revenue v. Arthur Paul Benthall - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hic meaning that indicate that both Duty and tax fall within the generic ambit of taxes, would not aid in the interpretation of the provisions of Rule 3(4) of the Cenvat Credit Rules, 2004. We notice that the several taxes and duties enumerated in Rule 3(1), are the duties/taxes of which credit could be availed, by an assessee for remittance of Central Excise duty or Service Tax as the case may be, for manufacture of goods or for rendition of taxable services. The provisions of Rule 3(4), appear to indicate a distinction between duties of excise and tax on services. This is so in view of the relevant provisions emplying both the words duty and tax distinctly. 10. On the prima facie analysis above, we are of the view that what is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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