TMI Blog2018 (7) TMI 983X X X X Extracts X X X X X X X X Extracts X X X X ..... ss and secondary and higher education cess - Whether Rule 3(1) of the Cenvat Credit Rules, 2004 applies to goods received from 100% export oriented units and whether the appellant-assessee is eligible to avail Cenvat credit on entire amount of education cess and secondary and higher education cess? - Held that:- The issue is no longer res-integra and stands decided in the case of TYCHE INDUSTRIES LTD. VERSUS COMMISSIONER OF C. EX., VISAKHAPATNAM [2010 (2) TMI 1125 - CESTAT BANGALORE], where it was held that appellants are entitled to avail 100% credit of Education Cess on the goods supplied to them by a 100% EOU - credit allowed. Appeal dismissed - decided against Revenue. - E/182/2012, E/185/2012 - FINAL ORDER No. 41913-41914/2018 - Da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore High Court and CESTAT. Therefore, the appeal is liable to be dismissed on monetary limits without going into the merits. Appeal dismissed. II. E/185/2012 3. The Ld. Counsel Ms. Cynduja Crishnan for the appellant-assessee submits the short issue involved in this appeal is whether Rule 3(1) of the Cenvat Credit Rules, 2004 applies to goods received from 100% export oriented units and whether the appellant-assessee is eligible to avail Cenvat credit on entire amount of education cess and secondary and higher education cess. She further submitted that the issue in dispute has already been settled by the Bangalore Bench of the Tribunal in the case of Tyche Industries Ltd. Vs. CCE 2014 (314) ELT 732 (Tri.-Bang.) wherein the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dit Rules. The learned Vice-President has followed the Larger Bench judgment rendered in the case of Das and Co. v. Collector - 2000 (121) E.L.T. 275 (Tribunal-LB) and also Apex Court judgment rendered in the case of Jindal Poly Films Ltd. v. Commissioner - 2006 (198) E.L.T. 3 (S.C.). The relevant findings in Paras 6 and 7 are reproduced herein below. 6. According to the Revenue, since Rule 3(7)(a) begins with a non-obstante clause, it overrides the provisions contained in sub-rule (1) and (4) of Rule 3 and, therefore, the only credit available to the appellants in respect of the inputs supplied by EOU will be the amount as specified under the formula given therein. However, this stand is not tenable for the reason that the non obstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even to employees in the factory who might not be workers‟ under Section 2(1), the same non obstante clause will keep away the applicability of exemption provisions qua all those working in the factory. The Labour Court, in our view, was, therefore, right in taking the view that because of the non obstante clause Section 64 read with Rule 100 itself would not apply to the respondents and they would be entitled to claim overtime wages under Section 59 of that Act read with Section 70 of the Bombay Shops and Establishments Act, 1948. The above decision has been followed by the larger bench of the Tribunal in Das Co. v. CCE, 2000 (121) E.L.T. 275, holding that a non obstante clause is used where contrary provisions exist. Simil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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