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2015 (9) TMI 1380 - CESTAT NEW DELHI

2015 (9) TMI 1380 - CESTAT NEW DELHI - 2015 (326) E.L.T. 167 (Tri. - Del.) - Denial of CENVAT Credit - Whether the respondents are entitled to Cenvat credit of Education cess and Secondary & Higher Education cess when inputs are supplied by 100% EOU, paying duty under Sr. No. 2 Notification No. 23/2003-CE dated 31.3.2003 - Held that:- When goods have been removed from EOU to DTA, availing the exemption under Sr. No. 2 of Notification No. 23/2003 (ibid) there is a restriction carved out by the fo .....

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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, clear the confusion and resolve the same. Therefore I do .....

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Advocate ORDER Per: Sulekha Beevi C.S. The above appeal filed by the Revenue (E/ 54487/2014) and the Cross Objections filed by the assessee (E/55849/2014) are together disposed by this Final Order. 2. The issue posing for consideration is whether the respondents are entitled to Cenvat credit of Education cess and Secondary & Higher Education cess when inputs are supplied by 100% EOU, paying duty under Sr. No. 2 Notification No. 23/2003-CE dated 31.3.2003. 3. The respondents are engaged in ma .....

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7; 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 .....

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he relevant period and they availed Cenvat credit of ₹ 8,62,80,867/-. The respondents were entitled to avail Cenvat credit of only ₹ 8,25,35,358/-. That therefore the Respondents have availed an excess Cenvat credit of ₹ 37,45,509/-.The allegation of excess availment of Cenvat credit is on the premises that the Cenvat credit admissible should be calculated as per formula prescribed in Rule 3(7)(a)and that the Additional Customs duty/CVD mentioned in the Rule means only basic ex .....

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the duty on payment of excise duty @16% as the goods were manufactured prior to conversion as an EOU. For the period 13.05.2007 to 17.07.2007 the said goods were 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 a .....

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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 Section 3 of the Excise Act read with serial numbers 3,5,6 and 7 of Notification No. 23/2003-Central Excise dated the 31st March, 2003 -in case the unit pays excise duty under Section 3 of the Excise Act read with serial number 2 of the Notification No. 23/2003-Cent .....

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nd capital goods cleared on or after 1st March, 2006 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 unit pays excise duty 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/400) multiplied by (CVD/100)} 7. As per proviso to Sec .....

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ed in India. Thus this Additional Duty of Customs (CVD) includes within it, Education Cess and SHE cess. All manufacturers, including EOU, are required to pay other duties of excise levied under different Acts like the Additional duty of Excise under Textile and Textile Articles Act, Goods of Special Inportance Act, NCCD, Education Cess and SHE Cess. Under the Notification No.24/2003(ibid) the levy of additional duty of excise under Textiles & Textile Articles Act and Goods of Special Import .....

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ohibit taking credit on the BCD component. But credit is available on the Additional Customs duty (CVD) component. As 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. 9. The position has been well clarified and settled in Emcure Pharmaceuticals Ltd. Vs. CCE 2008 (225) ELT 513 (Tri.-Mum.) The respon .....

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