TMI Blog2019 (2) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... ary and Higher Secondary Education Cess paid on those duty is also included for availment of credits by the manufacturer. Thus, only education cess paid under sub-section (5) is outside the purview of Cenvat Credit Rules and Secondary & Higher Education cess and are not attached to additional duty referred in sub-section (5) of Section 3 of the Customs Tariff Act. Extended period of limitation - Held that:- The case of the appellant can be considered as a bonafide dispute of legal interpretation of the provision inasmuch as it has reflected the credit in its cenvat credit account without utilisation that would never justify invocation of extended period. Appeal allowed - decided in favor of appellant. - Appeal No. E/86271/18 - A/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t at the appropriate rate and penalty of equivalent amount as well as penalty of ₹ 1,50,000/- on the Director of the appellant Mr. Vinod Kumar Modi by the adjudicating authority i.e. Additional Commissioner, Central Excise, Customs Central Tax, Nashik II vide his order dated 31.12.2015. Appellant preferred appeal against such finding of the adjudicating authority that was dismissed in respect of appellant company but allowed in respect of the Director absolving the penalty imposed on him. The present appeal is preferred by the appellant challenging part rejection of its appeal in respect of duty demand interest and penalty on the appellant company 3. In his memo of appeal and during course of hearing of the appeal, learned counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri M.R. Melvin for the respondent department supported the reasoning and rationality of the order passed by the Commissioner (Appeals) who referred to the decision of the Hon ble Supreme Court held in Ind-Swift Lab reported in 2011 (265) ELT 3 (SC). In citing decision of this Tribunal reported in 2018-TIOL-1034-CESTAT-MUM in the case of JSW Jaigarh Port, learned AR also submitted that after analysing the judgment in Ind-Swift Lab and Bilforge cited supra though penalty was waived off, interest liability was upheld. Referring to the factual aspect of the case that such wrong availment of cenvat credit was noticed after gathering intelligence information, Learned AR submitted that had the same not been noticed, on the strength of intelligen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vat credit is permissible, are equally applicable to additional duty leviable under section 3 of Customs Tariff Act. So there is no doubt that Education Cess Secondary and Higher Secondary Education Cess paid against additional duty leviable under section 3 of Customs Tariff Act are covered under cenvat credit permitted to be taken under Rule 3(1) of Cenvat Credit Rules 2004. Further, in respect of additional duty leviable under sub-section (5) of Section 3 of the Customs Tariff Act, nothing has been mentioned in Rule 3(1) of Cenvat Credit Rules 2004 that Education Cess Secondary and Higher Secondary Education Cess paid on those duty is also included for availment of credits by the manufacturer. 6. Going by Section 126 and 129 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty unless the same is drawn from the account of the government by way of refund or utilisation against duty dues. Moreover having regard to the fact that even the intelligence wing officials of the Excise department, who conducted investigation are unaware that higher education cess is not to be attached to sub-rule (5) of Rule 3 of Customs Tariff Rules, and issued show-cause to the appellant, the same itself is sufficient indication that even experts in the field of taxation also misinterpreted the provisions due to inadequate understanding. So the case of the appellant can be considered as a bonafide dispute of legal interpretation of the provision inasmuch as it has reflected the credit in its cenvat credit account without utilisation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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