9911796707
TMI Blog2017 (5) TMI 1379X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Act, 1944. Appellant is 100 % Export Oriented Unit functioning under the relevant Foreign Trade Policy and had cleared goods into the domestic tariff area (DTA) on payment of duties under section 3 of Central Excise Act, 1944 at rates equivalent to that applicable to imports of like goods. The computation of the said duty also included education cess of Rs. 2,01,735/- and secondary & higher education cess of Rs. 1,00,864/- totalling Rs. 3,02,599/- for the period from July 2010 to May 2011. The findings of the original authority, as endorsed by the first appellate authority, did not accept this contention and held that the availment of CENVAT credit of education cess, as well as secondary and higher education cess paid on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the taxation OF the domestic clearance effected by 100% Export Oriented Units is an aggregate of all the duties that like/similar goods are burdened with upon their import into India. 5. It is common ground that the appellant avails CENVAT credit of duties included in the price of inputs procured from Export Oriented Units. Revenue objects to the availment of credit of cess paid which is claimed to be not in accordance with the provisions of law. The insertion of proviso to rule 3(7) of CENVAT Credit Rules, 2004 with effect from 7th September 2009 is cited as the authority for this denial. Holding that the cess included for the computation of the duty of excise is not specifically included in the duties enumerated in rule 3 (1) of CENV ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of excise duty levied on clearances from Export Oriented Unit. The availment of credit to the extent specified in the notice issued to the appellant is incorrect and the impugned order is correct in law. 8. It would appear from the records that the availment of ineligible credit had arisen from apparent confusion about the nature and composition of the levy. That there were decisions of the Tribunal which endorsed the eligibility to credit would have added to the belief entertained by the appellant. The availment does not appear to have been motivated by intent to evade duties. The imposition of penalty does not appear to be appropriate. 9. The penalty is set aside and the appeal allowed to that limited extent. (Pronounced in Court on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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