2011 (11) TMI 565

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....asic Customs Duty and Additional Customs Duty leviable on such goods when imported. The calculation of Additional Customs Duty included duty of excise and Educational Cess as leviable on indigenously produced goods. The lower appellate authority has denied the appellants credit of the cess amount on the ground that credit of such cess was allowed only by an amendment made in the year 2009. The learned counsel Shri Viswanathan appearing for the appellants states that credit of cess is allowable under the main provision of Rule 3(1)(vi) and (via) of the Cenvat Credit Rules, 2004. He further states that the restriction placed under Rule 3(7) of the said Rules is only intended to prohibit a manufacturer from taking credit of that portion of the....

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....pect of such cases, the question of applying the restriction under Rule 3(7) of the Cenvat Credit Rules, 2004 does not arise as the application of the said Rule is conditional upon availing such exemption. Hence in respect of supplies for which no exemption has been availed, the appellants are correct in taking credit of the entire amount of duty equivalent to the excise duty and cess. 6. As regards the cases where the duty has been paid by the suppliers availing exemption under S.No. 2 of the Table under Notification No. 23/2003-C.E., dated 31-3-2003, the restriction under the proviso to Rule 3(7) of the Cenvat Credit Rules, 2004 comes into play as the period involved in this case is between June, 2007 to December, 2008. As has bee....

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....duty but also the amount equivalent to the cess on such excise duty. Since the restriction under the said sub-rule (7) is worded in such a ways to restrict credit of Basic Customs Duty but allow credit of Additional Customs duty, the appellants are within their rights to take credit of an amount equivalent to the Additional Customs Duty inclusive of excise duty as well as the amount of cess on such excise duty. I also note that there is no restriction on taking credit of cess in the Cenvat Credit Rules, 2004 although there is a restriction regarding utilization of various credits. On the other hand, Rule 3(1) does allow taking of credit of cess specifically. I also find that in the case Emcure Pharmaceutical cited supra, credit of cess has ....