TMI Blog2018 (12) TMI 356X X X X Extracts X X X X X X X X Extracts X X X X ..... lear statutory provisions, there is no bar in utilization of basic excise duty for payment of NCCD. Appeal dismissed - decided against Revenue - Appeal No. E/11853/2018 -SM - Final Order No. A/12553/2018 - Dated:- 28-9-2018 - Mr. Ramesh Nair, Member (Judicial) Shri Gobind Jha, Superintendent (AR) for the Appellant-Revenue Shri Willingdon Christian, Advocate for the Respondent ORDER Per: Ramesh Nair The issue involved in the present case is that whether the respondent is entitled to utilize Cenvat credit of basic excise duty for payment of National Calamity Contingent Duty (NCCD). 2. Shri Gobind Jha, ld. Superintendent (AR) appearing on behalf of the Revenue reiterates the grounds of appeal. He submits that as per Rule 3 (4)(a) only duty of excise can be utilized for payment of NCCD whereas, NCCD is not a duty of excise and is sur-charge, therefore, basic excise duty cannot be used for payment of NCCD. 3. Shri Willingdon Christian, ld. Counsel appearing on behalf of the respondent support the order of the ld. Commissioner (Appeals). He also referred to Rule 3 wherein the availment of credit and utilizing thereof is provided. According to wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o take credit of such additional duty; (viii) the additional duty of excise leviable under section 157 of the Finance Act, 2003 (32 of 2003); (ix) the service tax leviable under section 66 of the Finance Act; (x) the Education Cess on taxable services leviable under section 91 read with section 95 of the Finance (No.2) Act, 2004 (23 of 2004); and (xa) the Secondary and Higher Education Cess on taxable services leviable under section 136 read with section 140 of the Finance Act, 2007 (22 of 2007); and (xi) the additional duty of excise leviable under section 85 of Finance Act, 2005 (18 of 2005) 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 of the para 8 of notification No. 22/2003-Central Excise, published in the Gazette of India, part II, Section 3, sub-section(i),vide number G.S.R. 265(E), dated, the 31st March,2003. paid on- (i) any input or capital goods received in the factory of manufacture of final product or premises of the provider of output service on or after the 10th day of September, 2004; and (ii) any input service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case may be, the CENVAT credit shall be utilized only to the extent such credit is available on the last day of the month or quarter, as the case may be, for payment of duty or tax relating to that month or the quarter, as the case may be: Provided further that the CENVAT credit of the duty, or service tax, paid on the inputs, or input services, used in the manufacture of final products cleared after availing of the exemption under the following notifications of Government of India in the Ministry of Finance (Department of Revenue),- (i) No. 32/99-Central Excise, dated the 8th July, 1999 [G.S.R. 508(E), dated 8th July, 1999]; (ii) No. 33/99-Central Excise, dated the 8th July, 1999 [G.S.R. 509(E), dated 8th July, 1999]; (iii) No. 39/2001-Central Excise, dated the 31st July, 2001 [G.S.R. 565 (E), dated the 31st July, 2001]; (iv) No. 56/2002-Central Excise, dated 14th November, 2002 [G.S.R. 764(E), dated the 14th November, 2002]; (v) No. 57/2002-Central Excise, dated 14th November, 2002 [G.S.R.. 765(E), dated the14th November, 2002]; (vi) No. 56/2003-Central Excise, dated the 25th June, 2003 [G.S.R. 513 (E), dated the 25th June, 2003]; and (vii) No. 71/2003- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... go through the CENVAT Credit Rules, particularly Rule 3(4) and Rule 3(7) thereof. 10. Rule 3(1) provides that a manufacturer or producer of a final product shall be allowed to take CENVAT credit of the NCC duty leviable under Section 136 of the Finance Act, 2001. To this extent there is no dispute between the parties. 11. Rule 3(4) of the CENVAT Credit Rules is important and this reads as follows : (4) The CENVAT credit may be utilized for payment of (a) any duty of excise on any final product; or (b) an amount equal to CENVAT credit taken on inputs if such inputs are removed as such or after being partially processed; or (c) an amount equal to the CENVAT credit taken on capital goods if such capital goods are removed as such; or (d) an amount under sub-rule (2) of rule 16 of Central Excise Rules, 2002; or (e) service tax on any output service : Provided that while paying duty of excise or service tax, as the case may be, the CENVAT credit shall be utilized only to the extent such credit is available on the last day of the month or quarter, as the case may be, for payment of duty or tax relating to that month or the quarter, as the case may be : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . the National Calamity Contingent duty leviable under section 136 of the Finance Act, 2001, respectively, on any final products manufactured by the manufacturer . (words not necessary are deleted) Rule 3(7) provides that notwithstanding anything contained in sub-rule (1) and sub-rule (4), CENVAT credit in respect of NCC duty shall be utilized only towards payment of the NCC duty under Section 136 of the Finance Act, 2001 on any final product manufactured by the manufacturer. 13. Insofar as the assessee is concerned the contention urged was that CENVAT credit in respect of NCC duty can be utilized only for payment of NCC duty. But this does not mean that CENVAT credit on basic excise duty cannot be utilized for payment of NCC duty on the final product. Simply put, the contention is that payment of NCC duty through utilization of CENVAT credit on basic excise duty is not prohibited. The question is whether this is permissible or not. According to the Revenue, CENVAT credit on NCC duty can be utilized only for paying NCC duty and CENVAT credit on basic excise duty cannot be utilized for paying NCC duty. 14. On the above broad facts, the matter was adjudicate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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