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TMI Blog2024 (12) TMI 402X X X X Extracts X X X X X X X X Extracts X X X X ..... f Central Excise Tariff Act and operating under Cenvat Scheme. 3. During the period 31st October, 2005 to March, 2010 the Respondent availed Cenvat Credit of CVD on raw materials imported by them, the import duty on which were debited from DEPB scripts in terms of Notification No. 85/2005 Customs dated 4th October, 2005. Pursuing to the scrutiny of records, the proceedings were initiated against the Respondents by issuance of Show Cause Notice on 13th August, 2010 alleging that the Respondent has availed irregular Cenvat Credit of education cess of Rs. 5,28,00,414/- and secondary and higher education cess of Rs. 1,80,24,866/- on CVD which was debited from DEPB. 4. It is the case of the Revenue that the exemption notification allow Cenvat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled the benefit of Notification No. 85/2005-Can, dased 4-10-2005 by which the duties (BCD, CVD & SAD) were paid by debiting the DEPB license. They then avand credit of the duties incalling the Education Cess and Secondary Higher Education Cess. A show cause notice was issued raiting the allegation that as per Notification No. 185/2005-Cus dated 4-10-2005, the credit of CVD amount debited can be allowed, but as regards Education Cess and Secondary and Higher Education Cess, there is no provision in the notification for availing the credit of such amount debited in the DEPB certificates. That therefore the appellants have availed irregular credit of both Education Cess and Secondary Higher Education Cess which is not admissible. After due pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tage, of the value of the imported article. As per Section 3(1), one of the duties of customs leviable on imported goods is additional duty of customs (CVD). IT also provides that, the said CVD is to be equal to the excise duty for the time being leviable ona like article which is produced or manufactured in India. The duties of excise leviable on excisable goods manufactured in India are as under:- a. BED at the rate specified in the First Schedule to the Central Excise Tariff Act, 1985. b. SED at the rate specified in the Second Schedule to the Central Excise Tariff Act, 1985; c. Additional duty of excise under Additional Duties of Excise (Textile & Textile Articles At) Act, 1978 d. Additional duty of excise under Additiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, and hence credit is available under the same main provisions under Rule 3(1) of the Cenvat Credit Rules, 2004 in respect of imported goods as well as in respect of indigenously produces goods. In case of goods produces by EOUs, which are Units within the territory of India, the intention is to charge excise duty equivalent to the Customs Duty leviable on such goods, if imported. The calculation of such excise duty includes Basic Customs Duty as well as Additional Customs Duty. In turn, the Additional Customs Duty includes the excise duty as well as cess on excise of duty. The formula provided under Rule 3(7) of the Cenvat Credit Rules, uses an expression "CVD" but the same is defined to be the "Additional Duty of Customs". Hence, the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal customs duty is paid by adjustment in DEPB Scheme. 8. From the forgoing, applying the decisions cited above, I have no hesitation to hold that appellants have succeeded in establishing a case in their favour. The denial of credit is unjustified. In result, the impugned is set aside. The appeal is allowed with consequential reliefs, if any." 9. As issue is squarely covered by the decision of Laser Shaving (I) P. Ltd. (Supra) therefore, we hold that the Respondent is entitled to avail Cenvat Credit of additional duty quantified in respect of duty of Excise levied under different enactments is available is terms of Rule 3(7) of Cenvat Credit Rules, 2004 read with condition No. 6 of Notification No. 85/2005 Custom dated 4th October, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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