TMI Blog2008 (9) TMI 351X X X X Extracts X X X X X X X X Extracts X X X X ..... peal arises from Order-in-Appeal No. 44/2007-C.E., dated 21-9-2007 filed by the appellants who have been denied the Cenvat credit in respect of Education Cess availed by them on the inputs received from a 100% EOU unit. The short finding given by the Commissioner (A) in Para 5 is noted herein below. 5. The short question that is required to be determined is whether the appellant is entitled for credit of full education cess paid on the goods supplied by the 100% EOU or 50% as stated in Rule 3(7)(a) of Cenvat Credit Rules, 2004. As rightly held by the original authority, the supplier was paying duty under Sl. No. 2 of Notification No. 23/2003 which is an indisputed fact. Hence the appellants would be entitled to credit as per Rule 3(7)(a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able for the reason that the non-obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found in the same enactment or some other enactment, and not all provisions contained therein. My view is fortified by the Apex Court's decision in UOI v. G.M. Kokil - (1984) Supp 5CC 196, wherein the Apex Court has held as under:- "Section 70, so far as is relevant, says "the provisions of the Factories Act shall, notwithstanding anything contained in that Act, apply to all persons employed in and in connection with a factory": it is well-known that a non obstante clause is a legislative device which is usually employed to give overriding effect to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rary provisions exist. Similar view has been expressed by the apex court in the case of Jindal Poly Films Ltd. v. CCE, 2006 (198) E.L.T. 3 (S.C.) in the context of the Modvat Rules. Rule 3(1) is applicable to all manufacturers or producers of final products or providers of taxable services including 100% EOU. Rule 3(7)(b) allows utilisation of Cenvat credit by all categories of manufacturers or producers of final products or providers of taxable services, including 100% EOU, in respect of AED for payment of AED, NCCD for payment of NCCD, education cess for payment of education cess, etc. Rule 3(7)(b) also opens with the non obstante clause. Therefore, if the interpretation canvassed by the Revenue is accepted as correct, there would hav ..... X X X X Extracts X X X X X X X X Extracts X X X X
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