2018 (3) TMI 448

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.... Cenvat Credit Rules, 2004. 2. Brief facts of the case are that the appellant is engaged in the manufacture of cement. One of the inputs used in such manufacture is pet coke, which is used as fuel. The appellant procures this input from M/s. Reliance Industries Ltd., Jamnagar, which is a 100% EOU. The Central Government vide Notification No.23/2003-CE dated 31.03.2003 provides exemption to excisable goods manufactured in an EOU and supplied to the domestic industries. The Central Excise duty payable by an EOU under the said notification is equal to the Basic Customs duty (+) CVD (+) Edu. Cess (+) SHE Cess on like goods imported into India. Notification No.23/2003-C.E. dated 31.03.2003 was amended vide Notification No.10/2008C.E. dated 01....

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.... by Cenvat Credit (Second Amendment) Rules, 2008 through substitution of the new formula, in place of the old one, such substitution will date back to the issuance of Notification dated 01.03.2008. To support such stand, the ld. Advocate has relied on the judgement of the Hon'ble Supreme Court in the case of Government of India Vs. Indian Tobacco Association - 2005 (187) ELT 162 (SC) and Collector of Central Excise, Shillong Vs. Wood Craft Products Ltd. - 1995 (77) ELT 23 (SC). 4. On the other hand, the ld. D.R. appearing for the Revenue submitted that since Rule 3(7)(a) ibid prescribes the formula for taking cenvat credit by the assessee in the manner prescribed, the same has to be strictly adhered to by the appellant. Further, he also ....

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....f the finished goods manufactured by it. Since, the appellant has availed the Cenvat credit of CVD amount paid on the inputs; it is required to comply with the provisions of the Cenvat statute. At the time of taking Cenvat credit on the disputed inputs, the appellant did not comply with the conditions/formula laid down in Rule 3(7)(a) of the Cenvat Credit Rules, 2004, existed at the material time. Rather, it had taken Cenvat credit of the CVD amount paid by the supplier as per the notification dated 31.03.2003 read with notification dated 01.03.2008. The fact is not under dispute that the said notifications are not applicable to the appellant as a domestic manufacturer of excisable goods. Accordingly, the appellant cannot plead that the Not....

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....g notification merely clarified and made explicit, that which was implicit in the heading throughout. Contrary is the position in the present case, in as much as, the base notification dated 31.03.2003 and the amending notification dated 01.03.2008 are intended only for the goods manufactured in the EOU Units and not by the domestic industries. Thus, the formula prescribed in Rule 3(7) of the Cenvat Rules, at the relevant point of time, was only applicable for taking of appropriate Cenvat credit. In other words, since the exemption provided in the above notifications is no way concerned or connected with taking of Cenvat credit as per the prescribed formula in Rule 3(7) ibid by the domestic industry, it cannot be said that the amending noti....