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TMI Blog2018 (2) TMI 476X X X X Extracts X X X X X X X X Extracts X X X X ..... to all these appeals are that the assessees had availed cenvat credit on Education Cess and Secondary & Higher Education Cess paid on the imported goods for the period after April 2012 onwards. Show Cause Notices were issued for recovery of the cenvat credit availed on the Education Cess and Secondary & Higher Education Cess, alleging that after issuance of Notification Nos. 13/2012-Cus and 14/2012-Cus both dated 17.03.2012, Education Cess and Secondary & Higher Education Cess paid on the additional duty of customs levaible under Section 3(1) of CTA, 1975 read with Section 91 & 94 of the Finance Act, 2004 and Secondary & Higher Education Cess under Section 136 read with Section 138 of Finance Act, 2007, became exempted, accordingly, cenvat credit under Rule 3(1) of Cenvat Credit Rules, 2004 was not admissible. On adjudication, the demand was confirmed with interest and penalty. Aggrieved by the said Orders Appeals were filed by the assessees which were rejected by the Commissioner(Appeals) in nine cases listed above(sr.no.1 to 9) and allowed in one case(sr.no.10). Hence, both Revenue and the assesses are in appeal before this forum. 3. Ld. Advocate Sh. P.M. Dave, for the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Section 93 of Finance Act, 2004 and Section 138 of the Finance Act, 2007, respectively. It is his contention that irrespective of the fact that such cesses leviable under the above referred Finance Acts, were exempted by the aforesaid two customs Notifications, but once such cesses are leviable on the imported goods, because similar goods manufactured in India were leviable to such cesses, the quantum of duty under Section 3(1) of the CTA, 1975 on the imported goods should be equal to the duty of excise leviable on similar goods manufactured in India. It is his contention that on the goods imported by the appellant, Education Cess as well as Secondary & Higher Education Cess had been charged and collected and it was so collected by virtue of section 3(1) of the Customs Tariff Act, 1975, otherwise there has been exemption from payment of such cesses leviable under Sections 94 & 139 of the above two Finance Acts; thus such cesses so collected are eligible to credit. The Education Cess and Secondary & Higher Education Cess were charged and collected from the assesses-appellants by virtue of Section 3(1) of CTA,1975 read with sections 93 and 138 of the respective Finance Acts. 6. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued under the customs Act, it is obvious that Education Cess and Secondary & Higher Education Cess were charged and collected from the appellant in view of the levy of such cesses on similar goods manufactured in India. It is his contention that Education Cess and Secondary Higher Education Cess thus charged and collected as additional duty equivalent to the duty of excise leviable on goods manufactured in India were covered under Clause (vii) of Rule 3(1) of CCR, 2004 and hence its credit is admissible. Further, without prejudice to their submission it is further argued that Education Cess and Secondary Higher Education Cess has been levied and collected on CVD portion of the total duty as evident from the calculation in the bills of entry, hence cesses so calculated on the CVD portion are at least admissible as cenvat credit. 8. Per contra, Ld. AR for the Revenue has submitted that education cess on excisable goods manufactured in India and goods imported was levied for the first time in 2004 and secondary higher education cess was levied in the year 2007. He has submitted that as per Section 94 of Finance Act,2004 education cess is on aggregate duties of customs and as per S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ument of the assesse that both the exemption Notifications were issued under Section 25 of the Customs Act,1962 therefore cesses levied on CVD portion as well as on the aggregate of duties of customs are exempted is fallacious, in as much as the Education Cess as well as Secondary & Higher Education Cess continue to be collected on aggregate duties of customs even after issuance of the said Notification. Further, referring to the appeal filed by the Revenue, the Ld. AR has submitted that the Ld. Commissioner (Appeals) erroneously referred to the decision in Birla Corporation Ltd. 2015 (330) ELT 568 which was an interim order and issued under a different set of circumstances, therefore not applicable to the facts of the present case. He has vehemently argued that Rule 3(1) of CCR, 2004 clearly prescribes admissibility of cenvat credit of duty paid on Education Cess and Secondary Higher Education Cess in terms of Section 93 of Finance Act, 2004 and Section 138 of Finance Act, 2007, thus the Education Cess and Secondary Higher Education Cess paid under Section 94 of the Finance Act 2004 and Section 139 of Finance Act, 2007 respectively not admissible. 9. Heard both the sides and peru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of excise leviable under [section 85 of Finance Act, 2005 (18 of 2005),]] : paid on - (i) any input or capital goods received in the factory of manufacture of final product or [by] the provider of output service on or after the 10th day of September, 2004; and (ii) any input service received by the manufacturer of final product or by the provider of output services on or after the 10th day of September, 2004, including the said duties, or tax, or cess paid on any input or input service, as the case may be, used in the manufacture of intermediate products, by a job-worker availing the benefit of exemption specified in the notification of the Government of India in the Ministry of Finance (Department of Revenue), No. 214/86-Central Excise, dated the 25th March, 1986, published in the Gazette of India vide number G.S.R. 547(E), dated the 25th March, 1986, and received by the manufacturer for use in, or in relation to, the manufacture of final product, on or after the 10th day of September, 2004 : [Provided that the CENVAT credit shall be allowed to be taken of the amount equal to central excise duty paid on the capital goods at the time of debonding of the unit in terms o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2007 continued to be charged on imported goods. Though Education Cess and Secondary & Higher Education Cess was charged twice prior to 17.3.2012 but the credit was never allowed twice, that is, on the additional duty (CVD) equivalent to the excise duty leviable on like goods manufactured and produced in India) and again on aggregate duty of customs. It is allowed only in the former case. 13. The fundamental argument of the Appellant is that the Education Cess and Secondary & Higher Education Cess paid on the imported goods is admissible to credit as there is no designation in the CCR,2004 as excise cess and customs cess. Besides, the exemption notifications were issued under Sec.25 of the Customs Act,1962, hence, no bearing to the admissibility of credit on such cesses under the CCR,2004. No doubt in clause (vi) & (via), there is no mention of customs cess or Excise cess, but it cannot be denied that credit was admissible on Education Cess and Secondary Higher Education Cess paid on the excise duty leviable on manufactured goods as the said provision specifically mentions Sections 93 of the Finance Act,2004 and Section 138 of the Finance Act,2007 which relate to levy of Educatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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