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2016 (6) TMI 868 - CESTAT HYDERABAD

2016 (6) TMI 868 - CESTAT HYDERABAD - 2016 (344) E.L.T. 479 (Tri. - Hyd.) - Cenvat credit of Education Cess and Secondary and Higher Education Cess debited through DEPB credit - Held that:- The payment of additional duty of excise (CVD) is governed by sub-section (1) of Section 3 of Customs Tariff Act, 1975 and the exemption from this duty in import of goods is contained under Notification No.89/2005. The main contention of Revenue is that in Notification No.89/2005-Cus. dt. 04/10/2005, though c .....

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art of CVD itself is not without substance. - Appellants have succeeded in establishing a case in their favour. The denial of credit is unjustified. In the result, the impugned order is set aside. - Credit allowed - Decided in favor of assessee. - Appeal No. E/25024/2013 - Final Order No. A/30229/2016 - Dated:- 12-1-2016 - Hon ble Ms. Sulekha Beevi, C.S., Member ( Judicial ) Shri Karan Talwar, Advocate for the appellant Shri Anish Gupta, Assistant Commissioner(AR) for the respondent ORDER [ .....

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ng the allegation that as per Notification No.89/2005-Cus. dt. 04/10/2005, the credit of CVD amount debited can be allowed, but as regards Education Cess and Secondary and Higher Education Cess, there is no provision in the notification for availing the credit of such amount debited in the DEPB certificates. That therefore the appellants have availed irregular credit of both Education Cess and Secondary Higher Education Cess which is not admissible. After due process of law, the adjudicating aut .....

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ts pay CVD on the imported goods which is equivalent to duties of excise leviable on the like goods manufactured in India. The total CVD paid on the goods imported for the period September 2008 to June 2011 is ₹ 86,86,553/-. The department though observes that credit on CVD is available, the CENVAT credit of an amount of ₹ 2,53,003/- being CVD equivalent to Education Cess and Secondary Higher Education Cess is denied. He submitted that the rate of CVD applicable on the imported goods .....

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lows credit of Education Cess and Secondary and Higher Education Cess. That the budget Circular dt. 08/07/2004 clarifies this position. As per the illustration given therein, the rate of CVD applicable on the imported goods is the rate of basic excise duty inclusive of Education Cess and Secondary & Higher Education Cess payable thereon. That the findings of the authorities below that excise duty leviable on like article mentioned in Section 3(1) of Customs Tariff Act, 1975, refers only to b .....

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orrect perspective. 3. Against this, the learned AR Sri Anish Gupta supported the findings in the impugned order. He submitted that Notification No.89/2005-Cus. dt. 04/10/2005 does not mention Education Cess and Secondary and Higher Education Cess. It specifies that the goods imported are exempt from so much of additional duty leviable thereon under Section 3 of Customs Tariff Act, 1975. It further states that the importer shall be entitled to avail draw back or CENVAT credit of additional duty .....

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ss are levied under Finance Act, 2004 & 2007 and hence these are distinct and different from the CVD levied under Customs Tariff Act, 1975. That the authorities below rightly disallowed the credit availed on Education Cess & Secondary and Higher Education Cess. 4. I have heard the rival submissions and perused the records carefully. The payment of additional duty of excise (CVD) is governed by sub-section (1) of Section 3 of Customs Tariff Act, 1975 and the exemption from this duty in im .....

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ition, be liable to a duty (hereafter in this section referred to as the additional duty) equal to the excise duty for the time being leviable on a like article if produced or manufactured in India and if such excise duty on a like article is leviable at any percentage of its value, the additional duty to which the imported article shall be so liable shall be calculated at that percentage, of the value of the imported article. As per Section 3(1), one of the duties of customs leviable on importe .....

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se under Additional Duties of Excise (Textile & Textile Articles Act) Act, 1978; d. Additional duty of excise under Additional Duties of Excise (Goods of Special Importance) Act, 1957; e. NCCD under Finance Act, 2001; f. Education Cess under Finance Act, 2004 @ 2% on all the above duties of excise under Section 93 of the Finance Act, 2004; g. Secondary & Higher Education Cess under Section 136 read with Section 138 of the Finance Act, 2007 @ 1% on all the above duties of excise except Ed .....

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bunal while considering the exemption under Notification No.23/2003-CE (S.No.2) and the eligibility of credit on Education Cess thereunder, in the case of CCE, Chennai Vs. Jumbo Bags Ltd. [2013(296) ELT 142 (Tri. Chennai) observed as under:- 6. . . .. As regards the Additional Duty of Customs, which is levied under Section 3 of the Customs Tariff Act, 1975, the same is equal to duty of excise including cess, which is also levied and collected as duty of excise, and hence credit is available unde .....

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ise duty as well as cess on excise of duty. The formula provided under Rule 3(7) of the Cenvat Credit Rules, uses an expression CVD but the same is defined to be the Additional Duty of Customs . Hence, the expression would include not only the amount equivalent to the excise duty but also the amount equivalent to the cess on such excise duty. . Similar view was taken in the case of Jai Corp. Ltd. Vs. CCE&ST, Vapi [2015(317) ELT 489 (Tri. Ahmd.)] and CCE&ST, Ludhiana Vs. Khanna Paper Mill .....

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