TaxTMI 
TaxTMI 
TaxTMI 
2014 (11) TMI 706
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.... duty is paid under Sr. No. 1 of Table annexed to Notification No. 23/2003-CE. That in the following case laws it is held that credit of Cesses paid before 07.9.2009 was also admissible:- (i) Emcure Pharmaceuticals Limited vs. Commissioner - [2008 (225) ELT 513 (Tribunal)] (ii) CCE Daman vs. PVN Fabrics - [2013 (289) ELT 327 (Tri. Ahmd.)] (iii) Tyche Industries Limited Kakinada (AP) vs. CCE Vishakhapatnam - [2010-TIOL-810-CESTAT-BANG] (iv) Iscon Surgicals Limited vs. CCE, Jaipur - [2013 (296) ELT 78 (Tri. Del.)] (v) Metaclad Industries vs. CCE Mumbai - [2013 (289) ELT 381 (Tri. Mum.)] 2.1 Learned Advocate further argued that only with respect to goods received from 100% EOU under Sr. No.2 of the Table to Notification No. 23/2003-CE 31.3.2003 the formula prescribed as per Rule 3(7) (a) of Cenvat Credit Rules, 2004 is required to be followed. For the purpose of admissible CENVAT credit as per prescribed formula Education Cess and SHE Cess is also required....
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....excise duty payable on DTA clearances of a 100% EOU paying duty under S. No. 2 of the table to the Notification No. 23/2003-C.E., has basic Customs duty component also, the Cenvat credit available is confined only to the component comprising of Additional Customs duty (also called countervailing duty). Therefore on this basis, it can be said that though Rule 3(7)(a) does not mention any formula restricting, the credit, when the inputs received from a 100% EOU have suffered duty under S. No. 1 of the table to the Notification No. 23/2003-C.E., i.e. duty paid on the goods is basic customs duty plus Additional Customs duty plus sp. additional customs duty, if any, payable, plus Education Cess and S & H Cess payable under Section 93 of Finance Act, 2004 & Section 138 of Finance Act, 2007 respectively, the Cenvat credit available would be confined only to the Additional Customs duty plus sp. additional customs duty if payable plus education and S & H cess. 8. In these cases, the Appellants plea is that the duty on the inputs has been paid under S. No. 1 of the table to the Notification No 23/2003-C.E. If this is correct, they have correctly taken the Cenvat credit of Additional Custom....
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....mmunity - 2010 (254) ELT. 196 (S.C.). He relied upon the decision in the case of Madura Coats to submit that right to education cess as CENVAT Credit was created on 07.9.2009 and therefore it cannot be said to be clarificatory since it is a substantive right and therefore the same would not be admissible prior to that date. He relies upon the decision in the case of Bansal Wire Industries Ltd. to submit that rule or notification should not be interpreted in such a manner that rule would become redundant. The fact that the legislature chose to introduce the rule subsequently, would show that the benefit was not available earlier and if the decision in the case of Emcure Pharmaceuticals Ltd. is followed, it is rendering subsequent amendment of the rule by the legislature redundant. He also relies upon the decision in the case of Central Board of Dawoodi Bohra Community to submit that the decision in the case of Emcure Pharmaceuticals Ltd. is to be held as per incurium since it is clear that the decision of the Tribunal rendered the amended rule redundant and further it also shows that Emcure Pharmaceuticals Ltd. has not considered the statutory provisions properly. 6. Learned Counse....
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....d., the decision was cited to submit that it is a settled principle of law that the words used in Section, Rule, or Notification should not be rendered redundant and should be given effect to. A decision which has been rendered prior to the amendment and if the legislature brings out an amendment subsequently, it cannot be said that the decision of the Tribunal rendered prior to that date will become invalid because it extended the benefit which was extended subsequently by amendment. This decision would apply only when a decision of the Tribunal or a Court rendered existing provisions in Notification/Rule/Section redundant. Therefore, this decision is also not applicable to the facts of this case. As regards treating the decision of the Tribunal per incurium, the question does not arise in this case because the decision in the case of Emcure Pharmaceuticals Ltd. had considered the statutory provisions in detail and had come to a conclusion and it cannot be said that there were decisions of a higher judicial forum or a provision of law or relevant facts which have been ignored or not considered, despite having been submitted. In such a situation, the decision cannot be said to be p....
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....isions under Rule 3(1) of the Cenvat Credit Rules, 2004 in respect of imported goods as well as in respect of indigenously produced goods. In the case of goods produced by EOUs, which are Units within the territory of India, the intention is to charge excise duty equivalent to the Customs Duty leviable on such goods, if imported. The calculation of such excise duty includes Basic Customs Duty as well as Additional Customs Duty. In turn, the Additional Customs Duty includes the excise duty as well as cess on excise of duty. The formula provided under Rule 3(7) of the Cenvat Credit Rules, uses an expression 'CVD' but the same is defined to be the 'Additional Duty of Customs'. Hence, the expression would include not only the amount equivalent to the excise 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 ther....