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TMI Blog2023 (4) TMI 710X X X X Extracts X X X X X X X X Extracts X X X X ..... He pointed out that the cenvat credit which can be availed in respect of goods procured from 100% EOU is governed by the formula prescribed under Rule 3(7)(a) of Cenvat Credit Rules, 2004. According to the said Rule, the cenvat credit that can be availed is governed by the following formula: "Value x [(1 + BCD/400) x (CVD/100)] (where Value is assessable value of inputs or Capital Goods) (BCD is the Basic Customs duty) and (CVD is the Additional duty of Customs)" 2.1 Learned counsel pointed out that two show cause notices were issued to the appellant. One notice is invoking extended period of limitation from March 2007 to February 2009 and second for normal period of limitation from March 2009 to April 2009. The Show Cause Notices also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m immediately vide Entry No.745 dated 06.10.2020 and intimated to Range Superintendent vide letter dated 07.10.2010. If BCD rate is taken as 7.5% then CENVAT credit eligible amount arrives at equal to CVD portion only of which Appellant has taken the credit. He pointed out that Ld. Commissioner in his order wrongly stated that, Appellant contending as all invoices raised by EOU supplier are not duty paid under Sr.No.2 of Notification No.23/2003 CE dated 31.03.2003 hence formula is not applicable in those cases. The formula specified in rule 3(7) (a) is applicable in cases only where the goods are procured from an EOU which pays excise duty u/s 3 of Central Excise Act, 1944 read with Sr.No.2 of Notification No.23/2003 dated 31.03.2003. 2.4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmissions. We find that Notification No. 23/2003-CE under Serial No. 2 dated 31/03/2003 prescribes as follows: Sr. No. Chapter or heading No. or sub-heading No. Description of Goods Amount of Duty Conditions 2. Any Chapter All goods In excess of the amount equal to the aggregate of duties of customs leviable on like goods, as if,- (a) the duty of customs specified in the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), read with any other notification in force was reduced by 50%, and (b) no additional duty of customs was leviable under sub-section (5) of section 3 of the said Customs Tariff Act: Provided that while calculating the aggregate of customs duties, additional duty of customs leviable under sub-section (5) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... March, 2003] and used in the manufacture of the final products or in providing an output service, in any other place in India, in case the unit pays excise duty under section 3 of the Excise Act read with serial number 2 of the Notification No. 23/2003-Central Excise, dated the 31st March, 2003 [G.S.R. 266(E), dated the 31st March, 2003], shall be admissible equivalent to the amount calculated in the following manner, namely :- Fifty per cent. of [X multiplied by {(1+BCD/100) multiplied by (CVD/100)}], where BCD and CVD denote ad valorem rates, in per cent. of basic customs duty and additional duty of customs leviable on the inputs or the capital goods respectively and X denotes the assessable value : [Provided that the CENVAT credit i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ual to the duty of excise under clause (a) of sub-section (1) of section 3 of the Excise Act; (ii) the additional duty leviable under sub-section (5) of section 3 of the Customs Tariff Act; and (II) the Education Cess and the Secondary and Higher Education Cess referred to in (B).]" From the above, it is seen that Rule 3(7)(a) of Cenvat Credit Rules applies only the duty has been paid at the concessional rate prescribed in Serial No. 2 of Notification No. 23/2003-CE dated 31/03/2003. The appellant has submitted a significant number invoices during hearing. A perusal of these invoices shows that benefit of Serial No. 2 Notification No. 23/2003-CE dated 31/03/2003 has not been availed while payment of duty. Serial No. 2 Notification No. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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