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TMI Blog2019 (1) TMI 426X X X X Extracts X X X X X X X X Extracts X X X X ..... 32 of the Income Tax Act, 1961 which was in violation of Rule 4(4) of the CENVAT Credit Rules (CCR), 2004 and that the appellant had availed Credit of Education Cess on CVD and Secondary and Higher Education Cess on CVD during the impugned period in contravention of Rule 3(1) of CCR, 2004. 2. Accordingly, a Show Cause Notice dated 10.08.2015 was issued proposing recovery of Credit availed on capital goods amounting to Rs. 18,94,608/- and Rs. 39,405/-; both with applicable interests and penalties. After due process of law, the adjudicating authority vide Order-in-Original dated 30.09.2016 confirmed the recovery of Credit of Rs. 16,15,626/- after re-working the same, Credit of Rs. 39,405/- along with interests and penalties, as proposed. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S. L. Lumax Ltd. (supra) are as under : "17. From the facts narrated above, it can be seen that the appellant, though entitled to one of the two benefits, availed both the benefits. After detection by the Preventive Unit, the appellant chose to file an application for rectification under Section 154 of the Act as well as revised returns in respect of the Assessment years 1999-2000 and 2000-2001. They were accepted. Insofar as the Assessment year 1998-99 is concerned, the time-limit for filing a revised return had already expired and the attempt of the appellant to file application for rectification under Section 154 of the Act failed up to the Supreme Court. 18. In simple terms the assessee started up with a claim for two benefits and e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... py of the return accompanied by the requisite receipt. 5. It is not disputed by Ms. Hemalatha, who appears for the Revenue, that such evidence was placed before the Tribunal. Therefore, both the counsels are agreed that the impugned Judgement and order of the Tribunal needs to be set aside so a decision on merits can be rendered in the matter. 6. Accordingly, the impugned Judgement and order is set aside, with a direction to the Tribunal to decide the appeal of the appellant/assessee on merits. 7. The captioned appeal, is, accordingly, allowed. Resultantly, pending miscellaneous petition shall stand closed. There shall, however, be no order as to costs." 7. The documents placed on record namely, the Demand Notice under Section 156 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Revenue supported the findings of the lower authorities. 11. I have gone through both the Order-in-Original as well as the impugned Order. 12. I find that there is no reason given by the authorities below. I find force in the contentions of the Ld. Advocate. Rule 3(1)(vii) specifically allows the manufacturer or producer of final products to avail Credit including Education Cess on excisable goods and the Secondary and Higher Education Cess on excisable goods and the claim of the assessee, therefore, appears to be correct. The denial, if at all, of the CENVAT Credit, could only be in accordance with the provisions of law for any violation or contravention, etc. The authorities having not pointed out any such thing, the denial is he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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