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TMI Blog2025 (5) TMI 1219X X X X Extracts X X X X X X X X Extracts X X X X ..... Zonal Bench (Tribunal) in Excise Appeal No. 75328 of 2019. The said appeal was preferred by the assessee challenging the Order-in-original dated December 3, 2018 passed by the Commissioner, CGST & Central Excise, Kolkata South Commissionerate. By the said order, the adjudicating authority disallowed CENVAT credit and ordered for recovery from the assessee under Rule 14 (1) (i) of the CENVAT Credit Rules, 2004, read with Section 11A of the Central Excise Act, 1944 and also imposed penalty in terms of Rule 15 (1) of the Rules read with Section 11AC (1) of the Act. The learned Tribunal took note of the decision in the case of Commissioner of Central Excise, Customs and Service Tax, Belgaum vs. Shree Renuka Sugars Ltd., [2014 (302) ELT 33 (Kar. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the respondent/assessee. 4. Before we proceed to discuss further, it needs to be pointed out that the appeal filed by the revenue before the Hon'ble Supreme Court against the decision in Shree Renuka Sugars Ltd. (supra) in Civil Appeal 1531/2016, has been disposed of as not pressed on the ground that the appeal falls below the threshold contained in the Circular dated August 22, 2019 of the Central Board of Indirect Tax and Customs. Thus, as on date, the decision rendered by the Hon'ble Division Bench of the High Court of Karnataka in the case of Shree Renuka Sugars Ltd. (supra) holds the field. The issue which came up for consideration in the case of Shree Renuka Sugars Ltd., is identical to the questions of law raised in this appeal w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ENVAT and therefore the assessee is entitled to the benefit of CENVAT Credit. 7. The Hon'ble Court after taking note of the above submissions proceeded to first take up for consideration the question as to whether the cess paid under the Act is a fee or tax. After elaborate discussions and after referring to several decisions of the Hon'ble Supreme Court including the Constitutional Bench of the Hon'ble Supreme Court it was held that the traditional view that there must be actual quid pro quo for fee has undergone a sea change in the recent years. The tax recovered by a public authority invariably goes into the Consolidated Fund, which ultimately is utilized for public purposes; whereas a cess levied by way of fee is not intended to be and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se and not fee." 8. The other contention which was raised by the revenue in Shree Renuka Sugars Ltd. which is also argued before us is that to be eligible for Cenvat credit, it is necessary that the Act should have been mentioned in Rule 3 of the Cenvat Credit Rules. This issue was answered by the Court after taking into consideration Section 3 of the Central Excise Act, 1944 which is the charging section and the other provisions of the Act and the Cenvat Credit Rules and it was held that excise duty is leviable under the Central Excise Act and also the Sugar Cess Act, 1982. Paragraph 35 of the judgment is quoted below : "In view of the aforesaid provisions, when an assessee imports goods into India in addition to payment of basic Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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