2009 (4) TMI 310

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....s paid on capital goods received, on the plea that the restriction in the sub-rule applied only to duty of excise; restriction did not cover education cess which was not duty. Adjudicating the allegation of irregular availment of education cess to the tune of Rs. 2,68,547/- being 50% of education cess paid on capital goods received by the appellants during the material period, the original authority demanded the excess credit availed along with interest. In the impugned order, the Commissioner (Appeals) found that the education cess imposed under the Finance Act, 2004 was a duty of excise and the restriction envisaged in sub-rule 2(a) of Rule 4 of CCR applied to education cess as well. 2. After hearing both sides on the application for w....

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....in the possession of the manufacturer of final products, or provider of output service in such subsequent years." As per sub-rule 2(a) above, Cenvat credit in respect of capital goods received in a factory shall be taken for an amount not exceeding 50% of the duty paid on such capital goods [excluding the entire additional duty in terms of sub-section (3) of Section 5 of Customs Tariff Act] plus the entire additional duty in terms of sub-section (3) of Section 5 of Customs Tariff Act, in the same financial year. Duty for the purpose of Cenvat credit is not defined in the CCR. Sub-rule (1) of Rule 3 of CCR defines Cenvat credit as duties of excise, additional duty of excise, additional duty of customs, education cess, etc., levied under d....