TaxTMI 
TaxTMI 
2022 (4) TMI 69
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....y M/s. Viraj Profiles Ltd., a 100% EOU, who paid duty in terms of Section 3(1) of Central Excise Act, 1944, read with the Notification No.23/2003-CE dated 31.3.2003. the department objected to the availment of credit during the period April 2007 to January 2009 on the ground that the appellants are not entitled to first time credit of education cess and secondary higher education cess, in terms of Rule 3(7)(a) of the CENVAT Credit Rules, 2004. A show-cause notice dated 12.4.2010 has been issued and was adjudicated by the impugned order dated 3.1.2012, hence the appeal. 3. Learned counsel for the appellant submits that the entire issue in the present case is whether ad-valorem rate of CVD should be taken along with the first-time education ....
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....bserved that the expression "CVD" would include not only the amount equivalent to excise duty but also the amount equivalent to EC and SHEC on such excise duty. Therefore, Hon'ble CESTAT held that assessee had correctly factored EC and SHEC as CVD paid while calculating admissible cenvat credit under Rule 3(7)(a) of Cenvat Credit Rules, 2004. He relies upon following cases. i) CCE Vs. Jumbo Bags Ltd - 2013 (296) ELT 142 (T) ii) Shreya Pets Pvt. Ltd. Vs. CCE -2009 (240) ELT 408 (T) iii) Flint Group India Pvt. Ltd. Vs. CCE - 2016 (8) TMI 750 iv) Texbond Nonwovens Vs. CCE - 2018 (2) TMI 915 -CESTAT BANGALORE v) CCE Vs. Khanna Paper Mills Ltd. - 2015 (326) ELT 167 (T) - CESTAT CHENNAI 3.2 Learned counsel for the appellant further sub....
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....d EC and SHEC. * In the instant case, the EOU paid duty under Sl.No.2 of Notification No. 23/2003-C.E. and the Appellants have taken credit more than they were eligible as per the formula. * The case of Jumbo Bags Pvt. Ltd.: 2013 (296) E.L.T. 142 (Tri. - Chennai) the supplier has not availed exemption under Notification No. 23/2003- C.E. (S. No. 2) and thus the case is not relevant in the present matter. 4.1 Learned Authorised Representative relies upon the following cases: * J.K. Lakshmi Cement Ltd. Versus Commissioner of Central Excise, Jaipur-II [2018 (12) GSTL 330 (Tri.-Del)] * Muscat Polymers Pvt Ltd Vs CCE Rajkot [2009-TIOL-2252-CESTAT-AHM] * J.K. Cement Works Versus Commissioner of Central Excise, Jaipur [2018 (363) ELT 11....
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....and used in the manufacture of the final products or in providing an output service, in any other place in India, in case the unit pays excise duty under section 3 of the Excise Act read with serial number 2 of the Notification No. 23/2003-Central Excise, dated the 31st March, 2003 [G.S.R. 266(E), dated the 31st March, 2003], shall be admissible equivalent to the amount calculated in the following manner, namely :- Fifty per cent. of [X multiplied by {(1+BCD/100) multiplied by (CVD/100)}], where BCD and CVD denote ad valorem rates, in per cent of basic customs duty and additional duty of customs leviable on the inputs or the capital goods respectively and X denotes the assessable value : Provided that the CENVAT credit in respect of inp....
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....CENVAT credit). Hence, wherever the term CENVAT credit appears in these rules, they refer to the credit of duty as specified in rule 3 as supra and entirely include in the terms CENVAT credit. It is not merely talking about Basic Excise Duty and for that other duties individually. Thus, learned Commissioner concludes that CENVAT Credit as appears in the Rules is not limited to basic excise duty and for other duties also. Learned Commissioner appears to mean thereby, that the Rules do not contemplate any credit of cesses payable and paid. Learned Commissioner further relies on the Supreme Court judgment in the case of S.P. Gupta v. UOI AIR 1982 SC; State of Punjab V Balbir Singh 1994(70) ELT 481(SC) and holds that ".... the statute should be....
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....ulated as per the formula given under Rule 3(7) was taken and also the credit of cess was taken. We also find that the appellants have reversed the credit wrongly availed on being pointed out by the audit. 7. We find that this Tribunal had gone into the very same issue in the case of Encore Healthcare Pvt. Ltd.: 2017 (5) TMI 1379 and have held that credit admissibility in such circumstances should be as per Rule 3(7) of CENVAT Credit Rules. Therefore, we are of the considered opinion that the impugned order does not require any interference inasmuch as the admissibility of credit of duty is concerned. We find that the appellants have wrongfully availed excess credit which they have reversed subsequently on being pointed out. However, as su....