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M/s. Laser Shaving (I) P. Ltd. Versus CCE, Hyderabad

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 credit on CVD is allowed, it does not mention anything about Education Cess p .....

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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 [ Order per: Sulekha Beevi, C.S. ] The appellants are manufacturers of Razor a .....

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he 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 authority confirmed the demand of ₹ 2,53,003/- being the irregular credit .....

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iable 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 is the rate of total duties of excise, which is inclusive of Education Cess .....

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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 basic excise duty is incorrect. That the said section refers to excise duty l .....

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d 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 leviable under Section 3 of Customs Tariff Act, 1975 against the amount debi .....

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t 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 import of goods is contained under Notification No.89/2005. The main contentio .....

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itional 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 imported goods is additional duty of customs (CVD). It also provides that, the said .....

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t, 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 Education Cess in (f). The above would show that the rate of CVD applicable on .....

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.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 under the main provisions under Rule 3(1) of the Cenvat Credit Rules, 2004 in re .....

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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 Mills Ltd. [2015(326) ELT 167 (Tri. Del.)]. 6. Another reason for denying credit .....

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