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TMI Blog2018 (3) TMI 693X X X X Extracts X X X X X X X X Extracts X X X X ..... credit amounting to Rs. 25,81,480/- during the period October 2009 to July 2012 on the amount of 2% Education Cess and 1% Secondary and Higher Secondary Education Cess paid on CVD potion of the duty by the 100% EOU, the inputs supplier, in accordance with Sr. No. 2 of the Notification No. 23/2003-CE dated 31.03.2003. Alleging that the Education Cess and Secondary and Higher Secondary Cess paid on CVD portion of the duty paid by the 100% EOU is not admissible to credit, SCN was issued for recovery of the said credit with interest and proposal for penalty. On adjudication, the demand was confirmed with interest and penalty. Aggrieved by the said order, the appellant filed appeal before the Ld. Commissioner (Appeals), who inturn, rejected thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Cenvat credit, as per formula prescribed under Rule 3(7)(a) of the Cenvat Credit Rules, 2004 is concerned, appellant argued that elements of Education Cess and SHE Cess has to be considered as a part of CVD only. Appellant has relied upon the case laws of Shri Venketeshwara Precision Components v. CCE, Chennai (supra) and CCE, Chennai v. Jumbo Bags Limited (supra). In view of these case laws relied upon by the appellant this issue is no more res integra as per Para 6 of the case law CCE, Chennai v. Jumbo Bags Limited (supra) :- "6. As regards the cases where the duty has been paid by the suppliers availing exemption under Sr. No. 2 of the Table under Notification No. 23/2003-C.E., dated 31-3-2003, the restriction under the proviso to R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. Since the restriction under the said sub-rule (7) is worded in such a ways to restrict credit of Basic Customs Duty but allow credit of Additional Customs duty, the appellants are within their rights to take credit of an amount equivalent to the Additional Customs Duty inclusive of excise duty as well as the amount of cess on such excise duty. I also note that there is no restriction on taking credit of cess in the Cenvat Credit Rules, 2004 although there is a restriction regarding utilization of various credits. On the other hand, Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X
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