TMI Blog2019 (3) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... ying the CENVAT credit for Clean Energy Cess - appeal allowed - decided in favor of appellant. - ST/20536/2018-SM - Final Order No. 20232/2019 - Dated:- 1-3-2019 - SHRI S.S GARG, JUDICIAL MEMBER Shri Parthasarathy, Advocate For the Appellant Dr. J. Harish, Jt. Commissioner (AR) For the Respondent ORDER Per: S.S GARG The present appeal is directed against the impugned order dt. 29/01/2018 passed by the Commissioner(Appeals) whereby the Commissioner(Appeals) confirmed the Order-in-Original and rejected the appeal of the appellant. 2. Briefly the facts of the present case are that the appellants are engaged in the manufacture of cement falling under CSH 25 of CETA, 1985 and are availing CENVAT credit of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same has been passed without properly appreciating the facts and the binding judicial precedent. He further submitted that the statutory provisions relating to Clean Energy Cess contained a reference to the provisions of Central Excise Act, 1944 and therefore CCRs which are integral to Central Excise Act are also applicable to Clean Energy Cess. He further submitted that in the impugned order, the learned Commissioner(Appeals) has failed to appreciate that Section 83(3) of the Finance Act, 2010 provided for levy of Clean Energy Cess as duty of excise in respect of goods specified in Tenth Schedule and sub-section (7) of Section 83 also declares that any of the provisions of Central Excise Act, 1944 relating to levy, exemption from duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s excise duty or in other words, CENVAT, an assessee is legally entitled to take CENVAT credit of such duty. He also submitted that as far as imported coals are concerned, the Clean Energy Cess has been levied and collected as a duty of excise by virtue of Section 3(1) of the Customs Tariff Act and therefore in respect of imported coal, Clean Energy Cess component is covered by clause (vii) of Rule 3(1) of CCR. Learned counsel also submitted that the penalty imposed under Rule 15(1) of CCR read with Section 11AC is also not sustainable as the ingredients contained in Rule 15(1) are not satisfied in the present case. He also placed reliance on the following case laws:- i. Bangalore Jute Factory Co. Vs. Inspector of Central Excise [1992 (5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r denying the CENVAT credit for Clean Energy Cess. Here it is relevant to reproduce the said findings recorded in paras 6.1. and 6.2., which are as under:- 6.1. After considering the submissions of both the parties and perusal of the material on record, I find that the dispute in the present appeals relates to admissibility of CENVAT Credit for Clean Energy Cess paid on imported / indigenous coal, Lignite. It is a fact that the Clean Energy Cess on coal has been levied by Section 83 of the Finance Act, 2010 and as per Section 83(3) of the Finance Act, 2010, it is provided that the Clean Energy Cess in respect of goods specified in Tenth Schedule is levied as duty of excise and further I find that sub-section (7) of Section 83 also decla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing raw sugar the assessee has paid the additional Customs duty or CVD (countervailing duty) as prescribed under Section 3 of the Customs Tariff Act of 1975. If the Article imported is a like article produced or manufactured in India and if excise duty on such like article is leviable, the assessee is liable to pay the additional duty. The Excise Duty on sugar is payable under two enactments, i.e., (1) Section 3 of Central Excise Act of 1944, at the rate prescribed in the Central Excise Tariff Act, 1985. In addition, the assessee is also liable to pay cess as a duty of excise under the Sugar Cess Act of 1982. On such additional duty or CVD paid at the time of import by the assessee, apart from the Basic Customs Duty, he is entitled to the C ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
