2008 (9) TMI 351

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.... Para 5 is noted herein below. 5. The short question that is required to be determined is whether the appellant is entitled for credit of full education cess paid on the goods supplied by the 100% EOU or 50% as stated in Rule 3(7)(a) of Cenvat Credit Rules, 2004. As rightly held by the original authority, the supplier was paying duty under Sl. No. 2 of Notification No. 23/2003 which is an indisputed fact. Hence the appellants would be entitled to credit as per Rule 3(7)(a) of Cenvat Credit Rules, 2004 on the goods cleared by the 100% EOU. In view of the above, I pass the following order: ORDER The appeal is rejected. 2. As can be noted from the above findings, the findings are not speaking and does not deal with the question at ....

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..... My view is fortified by the Apex Court's decision in UOI v. G.M. Kokil - (1984) Supp 5CC 196, wherein the Apex Court has held as under:- "Section 70, so far as is relevant, says "the provisions of the Factories Act shall, notwithstanding anything contained in that Act, apply to all persons employed in and in connection with a factory": it is well-known that a non obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions. Thus the non obstante clause in Section 70, namely, "notwithstanding anything contain....

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....es including 100% EOU. Rule 3(7)(b) allows utilisation of Cenvat credit by all categories of manufacturers or producers of final products or providers of taxable services, including 100% EOU, in respect of AED for payment of AED, NCCD for payment of NCCD, education cess for payment of education cess, etc. Rule 3(7)(b) also opens with the non obstante clause. Therefore, if the interpretation canvassed by the Revenue is accepted as correct, there would have been no question of utilisation of education cess for payment of education cess if the taking of the credit itself, according to the Revenue, is barred by Rule 3(7)(a), and the provisions of Rule 3(7)(b) would, therefore, be rendered redundant. 7. In the light of the above discussion, I....