2013 (11) TMI 487

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....exempted under the said Notification." 2. The substantial question of law is really in two parts : The first part being whether NCC duty is exempted under Notification No. 32/99-C.E. If the answer to the first part is in the negative, then the second part is, whether CENVAT credit under the CENVAT Credit Rules can be utilized towards payment of NCC duty. Our answer to the first part of the question is in the negative and our answer to the second part of the question is in the affirmative. 3. NCC duty is leviable under Section 136 of the Finance Act, 2001. Sub-section (1) of Section 136 of the Finance Act makes it clear that NCC duty is by way of a surcharge and is a duty of excise. NCC duty is chargeable on goods specified i....

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...., 2004. 6. It is clear from the above that the general exemption is only in respect of the duty of excise or additional duty of excise under any of the above Acts, namely, the Central Excise Act, 1944, the Additional Duties of Excise (Goods of Special Importance) Act, 1957 and the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978. The general exemption has absolutely no reference to NCC duty which is levied as a surcharge under the provisions of the Finance Act, 2001. 7. Consequently, insofar as the first part of the substantial question of law framed above is concerned, it must be answered in the negative which is to say that NCC duty, even though it is a duty of excise, is not exempted under Notificatio....

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....ast day of the month or quarter, as the case may be, for payment of duty or tax relating to that month or the quarter, as the case may be : Provided further that the CENVAT credit of the duty, or service tax, paid on the inputs, or input services, used in the manufacture of final products cleared after availing of the exemption under the following notifications of Government of India in the Ministry of Finance (Department of Revenue), - (i)     No. 32/99-Central Excise, dated the 8th July, 1999 [G.S.R. 508(E), dated 8th July, 1999]; (ii)     No. 33/99-Central Excise, dated the 8th July, 1999 [G.S.R. 509(E), dated 8th July, 1999]; (iii)   No. 39/2001-Central Excise, dated the 31st....

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....le 3(7) is equally important and this reads as follows : (7) Notwithstanding anything contained in sub-rule (1) and sub-rule (4), - (a)     ............... (b)     CENVAT credit in respect of, - (i)     ................ (ii)     the National Calamity Contingent duty leviable under section 136 of the Finance Act, 2001 (14 of 2001); (iii)   ............... (iv)   ............... (v)     ................ (vi)   ...............          shall be utilized only towards payment of .......... the National Calamity Contingent duty leviable under se....

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....credit on any other duty could not be utilized for payment of NCC duty. Accordingly, the said Commissioner confirmed the demand of Rs. 82,07,125/- and passed an order for recovery of NCC duty from the assessee. 15. Feeling aggrieved, the assessee preferred an appeal before the Customs, Excise and Service Tax Appellate Tribunal at Kolkata. The appeal filed by the assessee was registered as Excise Appeal EDM 648/2006. The CESTAT noticed the provisions of Rule 3(4) as well as the provisions of Rule 3(7) of the CENVAT Credit Rules and held that though credit of NCC duty could be utilized for paying NCC duty only, the restriction would not extend to utilization of credit of duty which is not specifically listed in Rule 3(7). The corollar....