TaxTMI 
TaxTMI 
2013 (8) TMI 956
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.... respect of Sl. Nos. 1, 2 and 96-145 in the show cause notice issued to the appellant, issue involved is whether the appellant is eligible for Cenvat credit of education cess paid on overall excise duty arrived as equal to customs duty in terms of Section 3 of the Customs Tariff Act and paid by an EOU who has supplied the goods to the appellant. This is generally called as 3rd cess. The first cess is calculated on the Basic Customs duty portion and thereafter it is calculated on the CVD element and thereafter after arriving at the total duty payable, education cess is calculated for the 3rd time. Even though, there was a dispute in respect of some EOUs as to whether the cess is payable for the 3rd time or not which has finally been settled ....
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....ceuticals Ltd. v. CCE, Pune [2008 (225) E.L.T. 513 (Tri.-Mumbai)], it has been held that the education cess was allowed under Rule 3(7)(b) of CCR, 2004 and therefore the restrictions as regards formula prescribed for allowing education cess in respect of supplies from EOUs under Rule 3(7)(a) is not applicable to education cess and full amount of education cess paid would be admissible. In my opinion, the claim of the learned counsel that Emcure Pharmaceuticals decision would be applicable to the present case is correct. If education cess on CVD portion is admissible, 3rd time cess which is payable according to the Department on the ground that what is required to be paid by the 100% EOU is excise duty and the total excise duty arises only a....
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....Central Excise Act, 1944. The rule refers to Notification 23/2003-C.E. which exempts duty leviable under Section 3 of the Central Excise Act, 1944 and nowhere refers to the Finance Act under which education cess is levied. From this, it appears that the objective of the Legislature was to restrict availment of credit of BED paid by an EOU and not to restrict availment of credit of other duties leviable under the Finance Act, 1994 (Education Cess) and National Calamity Contingent Duty Act and Additional Duties of Excise (Textiles and Textile Articles) Act, etc. 6. According to the Revenue, since Rule 3(7)(a) begins with a non obstante clause, it overrides the provisions contained in sub-rules (1) and (4) of Rule 3 and, therefore, the ....
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....ctory notwithstanding anything to the contrary contained in it, it must have the effect of excluding the operation of the exemption provisions. Just as because of the non obstante clause the Act is applicable even to employees in the factory who might not be 'workers' under Section 2(1), the same non obstante clause will keep away the applicability of exemption provisions qua all those working in the factory. The Labour Court, in our view, was, therefore, right in taking the view that because of the non obstante clause Section 64 read with Rule 100 itself would not apply to the respondents and they would be entitled to claim overtime wages under Section 59 of that Act read with Section 70 of the Bombay Shops and Establishments Act, 1948." ....
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..... Another issue involved in the appeal is whether the appellant can take Cenvat credit of excise duty paid equal to the amount of cess paid on the additional customs duty or the amount calculated in accordance with formula as per Rule 3(7)(a) of CCR. When the statutory provisions clearly provide that appellant can take credit as per the formula, the question of availing the credit equal to the additional duty indicated in the invoice does not arise as far as credit of duty is concerned. The additional duty may be required to be taken into account by the supplier since while availing the benefit of Notification, the supplier is required to calculate the amounts payable as per the formula as well as the actual additional customs duty pay....