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Issues: Whether CENVAT credit of education cess and higher education cess paid by a hundred per cent export-oriented undertaking on duty of excise paid under Notification No. 23/2003-C.E. was admissible for the period prior to the amendment introducing the second proviso to Rule 7(a) of the CENVAT Credit Rules, 2004, and whether the earlier Tribunal decision allowing such credit could be treated as per incuriam.
Analysis: The amendment to Rule 7(a) with effect from 07.09.2009 introduced an express provision for credit of the education cess and secondary and higher education cess on clearances from a hundred per cent export-oriented undertaking. The earlier Tribunal ruling had already taken the view that such credit was admissible on the then-existing legal framework. The later amendment did not render that earlier decision erroneous or per incuriam, because a subsequent legislative provision cannot be used to nullify a prior judicial interpretation of the unamended rule. The contentions based on redundancy of statutory language, retrospective operation, and per incuriam were held inapplicable on the facts, since the issue was whether the earlier precedent should be followed, not whether the later amendment operated retrospectively.
Conclusion: The earlier Tribunal decision was followed, and the credit was held admissible. The Revenue's appeal failed.
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