TMI Blog2019 (7) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms duty, the appellants are within their rights to take credit of an amount equivalent to the Additional Customs Duty inclusive of excise duty as well as the amount of cess on such excise duty. Credit allowed - appeal allowed - decided in favor of appellant. - E/40061 of 2013 - FINAL ORDER No. 40872/2019 - Dated:- 27-6-2019 - MR P.DINESHA, Judicial Member Shri R. Parthasarathy, Advocate, for the appellant Shri L. Nandakumar, AC, Authorized Representative for the Respondent ORDER M/s. Vijay Plas Fabs (Pvt.) Ltd., the appellant herein is a 100% EOU engaged in the manufacture of Flexible HDPE Woven Sacks and are availing Cenvat credit for various inputs, capital goods an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th interest and imposed a penalty of ₹ 1000/- under Rule 15 of CCR read with Section 11 AC of CEA. Aggrieved by the above adjudication order, appellants preferred appeal before the Commissioner (Appeals) and the Commissioner (Appeals) vide impugned order dated 23.11.2012 relied on the Order of the first appellate authority in the case of M/s. Stanpacks (India) Limited, in Orders-in-Appeal Nos. 24, 25 26/2012 dated 23.04.2012, on the same issue and upheld the order of the adjudicating authority to the extent of availment of excess CVD credit with interest but however, dropped the penalty imposed. Aggrieved by this, the appellant is before this forum. 2. Today, when the matter is called, Shri R. Parthasarathy, Ld. Consult ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies of excise (Cenvat, education cess and secondary education cess) paid by RIL, a 100% EOU. He relied on the following case laws in support of his contentions:- 1. CCE, Chennai Vs. Jumbo Bags Ltd. 2013 (296) ELT 142 (Tri.-Chennai). 2. Metaclad Industries Vs. CCE, Mumbai 2012 (289) ELT 381 (Tri.-Mum.) 3. CCE ST, Ludhiana Vs. Khana Paper Mills Ltd. 2015 (326) ELT 167 (Tri.-Delhi) 4. Jai Corp. Ltd. Vs. CCE ST, Vapi 2015 (317) ELT 489 (Tri. Ahmd.) 4. Per contra, Ld. DR drawing support from the findings of both the authorities below, submitted that to arrive at the quantum of credit as per the formula, assessable value of goods cannot be inclusive of basic customs duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case laws of Shri Venketeshwara Precision Components v. CCE, Chennai (supra) and CCE, Chennai v. Jumbo Bags Limited (supra). In view of these case laws relied upon by the appellant this issue is no more res integra as per Para 6 of the case law CCE, Chennai v. Jumbo Bags Limited (supra) :- As regards the cases where the duty has been paid by the suppliers availing exemption under Sr. No. 2 of the Table under Notification No. 23/2003-C.E., dated 31-3-2003, the restriction under the proviso to Rule 3(7) of the Cenvat Credit Rules, 2004 comes into play as the period involved in this case is between June, 2007 to December, 2008. As has been argued by the learned advocate, there is no dispute that the restriction placed under sub-r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction under the said sub-rule (7) is worded in such a ways to restrict credit of Basic Customs Duty but allow credit of Additional Customs duty, the appellants are within their rights to take credit of an amount equivalent to the Additional Customs Duty inclusive of excise duty as well as the amount of cess on such excise duty. I also note that there is no restriction on taking credit of cess in the Cenvat Credit Rules, 2004 although there is a restriction regarding utilization of various credits. On the other hand, Rule 3(1) does allow taking of credit of cess specifically. I also find that in the case Emcure Pharmaceutical cited supra, credit of cess has been allowed though entirely for different reasons.In view of the above while calcul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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