TMI Blog2008 (1) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... ].-1. Credit of education cess of Rs.1,88,367/- availed by the appellants herein who are manufacturers of medicaments, during the period 16.6.2005 to 19.10.2005, has been disallowed by the authorities below on the ground that the goods were supplied to them by 100% EOU, M/s. Jubiliant Organosys Ltd., and as per Rule 3(7)(a) of the Cenvat Credit Rules, 2004, an assessee receiving goods from a 100% EOU can avail credit of BED only as per the formula prescribed thereunder. 2. I have heard both sides. 3. Rule 3(1) of the Cenvat Credit Rules, 2004 provides as under:- A manufacturer or producer of final products or a provider of taxable service shall be allowed to take credit (hereinafter referred to as the Cenvat Credit) of (i) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e tax leviable under section 66 of the Finance Act; (x) the Education Cess on taxable services leviable under Section 91 read with Section 95 of the Finance (No.2) Act, 2004 (23 of 2004); and (xi) the additional duty of excise leviable under clause 85 of the Finance Bill, 2005, the clause which has, by virtue of the declaration made in the said Finance Bill under the Provisional Collection of Taxes Act, 1931 (16 of 1931) the force of law) Paid on - (i) any input or capital goods received in the factory of manufacture of final product or premises of the provider of output service on or after the 10 th day of September, 2004; and (ii) any input service received by the manufacturer of final product or by the provider of output ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03, (GSR 266 (E), dated 31/03/2003) and used in the manufacture of the final products or in providing an output service, in any other place in India, 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-CE (GSR 266 (E) dated the 31/03/2003) shall be admissible equivalent to the amount calculated in the following manner namely:- Fifty percent of (X multiplied by {1+BCD/100) multiplied by (CVD/100)}], where BCD and CVD denote ad valorem rates, in percent, of basic customs duty and additional duty of customs leviable on the inputs or the capital goods respectively and X denotes the assessable value". (h) Cenvat credit in respect of - (i) the additional duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redit of specified duties paid on inputs or capital goods or input services and Rule 3(4) allows a manufacturer to utilise such credit for payment of excise duty on final product or service tax on output service. However, an exception has been carved out in respect of inputs supplied by an EOU where the availment of credit is restricted to the formula specified under Rule 3(7)(a) only in respect of basic excise duty levied under Section 3 of the Central Excise Act. Rule 3(7)(a) does not cover all duties paid by EOU as it refers only to availment of credit of duty paid by EOU under Section 3 of the Central Excise Act, 1944. The rule refers to Notification 23/2003-CE which exempts duty leviable under Section 3 of the Central Excise Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions. Thus the non obstante clause in Section 70, namely, "notwithstanding anything contained in that Act" must mean notwithstanding anything to the contrary contained in that Act and as such it must refer to the exempting provisions which would be contrary to the general applicability of the Act. In other words, as all the relevant provisions the Act are made applicable to a factory notwithstanding anything to the contrary contained in it, it must have the effect of excluding the operation of the exemption provisions. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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