TMI Blog2015 (9) TMI 1380X X X X Extracts X X X X X X X X Extracts X X X X ..... s already stated, Additional Customs duty includes excise duty as well as cess on this excise duty. Therefore the respondents are entitled to take credit of an amount equivalent to the Additional Customs Duty inclusive of excise duty and cess thereon. Though the decision in Emcure Pharmaceuticals Ltd case [2008 (1) TMI 147 - CESTAT, MUMBAI] which has been followed in the later judgement noted above, was rendered prior to the amendment inserting the second proviso to Rule 3(7) (a), the principle enunciated therein alongwith the other judgments are correctly applicable to the present case. The legislature in its wisdom has brought forth the amendment of adding the second proviso to Rule 3(7)(a) w.e.f. 7.09.2009 to suppress the mischief, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents issued letter disputing the same but however debited an amount of ₹ 8,49,215/ on 23.08.2010 under protest. Later a show cause notice was issued and was finalized by the Order-in-Original which confirmed the demand and imposed penalty along with interest. Aggrieved the respondents filed appeal before the Commissioner (Appeals) who held the issue in favor of the Respondents and also set aside the imposition of penalty. However, the amount of ₹ 8,49,215/- deposited under protest was appropriated as the Respondents had submitted that this amount was availed in excess due to mistake in calculation.The Revenue is in appeal challenging the impugned order passed by Commissioner (Appeals). 4. At the outset it has to be me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere cleared by RIL without availing exemption of duty under Sr.No.2 of Notification No.23/2003-CE dated 31.03.2003. Thus for the above two periods there was no need to resort to the Rule 3(7)(a) of the Cenvat Credit Rules. In this appeal, the Revenue has confined the allegation to the period 18.07.2007 to 1.11.2008 and the alleged excess availment of Cenvat credit is ₹ 27,14,745/-. It is also the case of Revenue that Commissioner (Appeals) has wrongly accepted the contention of the respondent that the amount of ₹ 8,49,214/- was availed in excess due to mistake in calculation and has erred in not imposing any penalty. 6. For proper appreciation of the issue the relevant provision is noticed as under. Rule 3(7)- Notwithstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 31st March, 2003] shall be equal to X multiplied by {1+BCD/400) multiplied by (CVD/100)} 7. As per proviso to Section 3(1) of Central Excise Act, 1944, if the goods are manufactured by an EOU and brought to any place in India, the excise duty levied shall be equal to the aggregate of the duties of customs which would be leviable under the Customs Act, 1962 on like goods produced or manufactured outside India if imported to India. The aggregate duties of Customs include Basic Customs Duty and Additional Customs duty. The Additional duty of customs in turn is equal to excise duty leviable on goods manufactured in India. Thus this Additional Duty of Customs (CVD) includes within it, Education Cess and SHE cess. All manufacturers, inclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2014-TIOL-1638-CESTAT-AHM, Shreya Pets Pvt. Ltd. Vs. Commissioner 2009 (240) ELT 408 (Tri.-Bang.), CCE Vs. Jambo Bags Ltd. 2013 (296) ELT 142 (Tri.-Mad.). 10. The Commissioner (Appeals) has applied the ratio laid in Jumbo Bags Ltd. case (supra). In all the above cases it has been held in favour of the assessee. Though the decision in Emcure Pharmaceuticals Ltd case which has been followed in the later judgement noted above, was rendered prior to the amendment inserting the second proviso to Rule 3(7) (a), the principle enunciated therein alongwith the other judgments are correctly applicable to the present case. The legislature in its wisdom has brought forth the amendment of adding the second proviso to Rule 3(7)(a) w.e.f. 7.09.2009 to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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