9911796707
TMI Blog2018 (7) TMI 983X X X X Extracts X X X X X X X X Extracts X X X X ..... s only). According to the instruction issued under F. No. 390/Misc./163/2010-JC dated 17.12.2015 in partial modification of the earlier instruction dt. 17/08/2011, monetary limit for filing the appeal before the Tribunal by the Revenue has been fixed at Rs. 10,00,000/- (Rupees Ten Lakhs only). Since in this appeal the amount is less than Rs. 10,00,000/- (Rupees Ten Lakhs only), the appeal has to be rejected. As regards appeals filed prior to issue of these instructions, Hon'ble High Court of Karnataka in the case of Commissioner of Income Tax, Bangalore Vs. Ranka & Ranka reported in [2012 (284) E.L.T. 185 (Kar.)] has taken a view that the circular is applicable in respect of appeals filed prior to issue of instructions also. Even though, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant portion which is reproduced as under for the sake of convenience:- "5. On a careful consideration of the submissions made by both sides, I find that the issue to be decided is whether the appellant is eligible to avail Cenvat credit on entire amount of Education Cess paid by 100% EOU or is eligible to be only that much credit as prescribed in the formula as per Rule 3(7)(b) of Cenvat Credit Rules, 2004. I find that an identical issue in respect of Shreya Pets Pvt. Ltd. (supra) came up before this Bench and the Bench while allowing the appeal, held as under :- "3. The learned Cost Accountant submits that the issue is no longer res integra and the Mumbai Bench in the case of Emcure Pharmaceuticals Ltd. v. CCE, Pune - 2008 (225) E.L.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mployed in and in connection with a factory": it is well-known that a non obstante clause is a legislative device which is usually employed 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... education cess, etc. Rule 3(7)(b) also opens with the non obstante clause. Therefore, if the interpretation canvassed by the Revenue is accepted as correct, there would have been no question of utilisation of education cess for payment of education cess if the taking of the credit itself, according to the Revenue, is barred by Rule 3(7)(a), and the provisions of Rule 3(7)(b) would, therefore, be rendered redundant. 7. In the light of the above discussion, I am of the view that credit of education cess is admissible to the appellants herein, and accordingly set aside the impugned order and allow the appeal." 8. On a careful consideration, I find that Mumbai Bench has given a clear cut finding that appellants are entitled to avail 100% cr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
