2020 (4) TMI 379

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.... as per Rule 3 Sub-rule (7) clause(a) of Cenvat Credit Rules, 2004 at the relevant time does not include Education Cess and Secondary and Higher Education Cess for the purpose of computing the Cenvat Credit on the input supplied by 100% EOU therefore, the appellant is not eligible for Cenvat Credit on Education Cess & Secondary and Higher Education Cess. Accordingly, the demand was confirmed and upheld by the order of Commissioner (Appeals), therefore, the appellant is before me. 2. Shri Rajmohan Asokan, Manager Taxation of the appellant company submits that though the Education Cess and Secondary and Higher Education Cess was not included in Rule 3(7)(a) prior to 7th September, 2009 but by amendment Notification No.22/2009-C.E. (N.T.) d....

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....ducation Cess. He placed reliance on the following judgments:- • BANCO PRODUCTS (INDIA) LTD. vs COMMISSIONER OF C.EX., VADODARA-I 2019 (366) E.L.T. 865 • VISHAY COMPONENTS INDIA PVT. LTD. vs COMMISSIONER OF C. EX.,PUNE III • MOLEX (INDIA) PVT. LTD. vs COMMISSIONER OF C.EX., BANGALORE-I • UNION OF INDIA vs WEST COAST PAPER MILLS LTD. 4. He further submits that on the identical issue against the tribunal order, the revenue's appeals are pending before the Hon'ble Supreme Court and Hon'ble Gujarat High Court the citations are as below:- • COMMISSIONER VS MOLEX (INDIA) PVT. LTD.- 2017 (355) E.L.T. A82 (S.C.) • COMMISSIONER VS BANCO PRODUCTS (INDIA) LTD.- 2019 (366)....

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.... 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 been argued by the learned advocate, there is no dispute that the restriction placed under sub-rule 7(3) is intended to prohibit a manufacturer from taking credit of that portion of the duty which is equivalent to the Basic Customs Duty. This provision is required so as not to give any undue advantage in respect of any supplies from the EOUs since in the case of imported goods, there is no provision for taking credit of the Basic Customs Duty paid on the imported inputs. As regards the Additional Duty of Customs, which is levied under Section 3 of the ....

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....ilization 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 been allowed though entirely for different reasons." In view of the above while calculating admissible CENVAT credit under Rule 3(7)(a) of Cenvat Credit Rules, 2004, appellant has correctly factored Education Cess and Higher Education Cess as CVD paid. 5.1 However, in Para 6.5, 6.7 and D of the appeal memorandum appellant has admitted that for the period 1-3-2008 to 31-7-2008 the duty on inputs received was reduced from 16% to 14% as per budget 2008-09 whereas they calculated admissible credit by taking duty at the rate of 16%. That t....