Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise & St, J & K vs M/S. Sun Pharmaceuticals Industries on 30 May, 2017
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL SCO 147-148, SECTOR 17-C, CHANDIGARH 160 017 COURT NO. I Appeal No. E/2066,2404,2631/2007, E/2462-2463/2008 [E/Cross/216,236,265/2007] Date of Hearing/ Decision : 30.05.2017 [Arising out of Order-in-Appeal No. OIA- 110/CE/APPL/JAL/2007 dated 30.03.2007, OIA- 160/CE/APPPL/JAL/2007 dated 18.05.2007, OIA- 166/CE/APPL/JAL/2007 dated 22.06.2007, OIA- 166/CE/APL/JAL/2006 dated 22.06.2007 and OIA- 416-417/CE/APPL/JAL/2008 dated 29.08.2008 passed by the Commissioner (Appeals) Customs, Jammu] For approval and signature: Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. Anil G. Shakkarwar, Member (Technical) Commissioner of Central Excise & ST, J & K : Appellant vs. M/s. Sun Pharmaceuticals Industries : Respondent
and E/100/2008 M/s. Sun Pharmaceuticals Industries : Appellant vs. Commissioner of Central Excise & ST, J & K : Respondent Appearance:
Shri A.R. Sharma, A.R. for the Appellant/ Revenue (vice-versa) Shri Sanandan Khairnar, Advocate for the Respondent/Assessee (vice-versa) CORAM:
Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. Anil G. Shakkarwar, Member (Technical) Final Order No. 60971-60976 / 2017 Per : Ashok Jindal The short issue involved in all the appeals is whether the assessee can utilise the Cenvat credit on inputs/ capital goods of Basic Excise Duty for payment of Education Cess or not.
2. Considering the fact that the issue came up before the Tribunal in the case of CCE, Jammu & Kashmir vs. Bharat Box Factory Limited, wherein the Tribunal vide Final Order No. 60945/2017 dated 30.05.2017 observed as under :-
6. On hearing the parties, we find that the issue before us is that whether in case the assessees availing Area Based Exemption, can utilise the Cenvat credit of Basic Excise Duty for payment of Education Cess or not.
7. The said issue has been considered by the Hon'ble High Court of Gauhati in the case of Kamakhya Cosmetics & Pharmaceutical Pvt. Limited (supra), wherein the Hon'ble High Court has observed as under:-
5.?In the present case, the assessee utilized Cenvat credit of Basic Excise duty for paying Education Cess to which department raised objection. The Adjudicating authority held that Cenvat Credit of Basic Excise Duty could not be utilized for payment of Education Cess and accordingly deducted the amount from the refund due to the assessee.
6.?The assessee preferred revision petition under Section 35EE of the Act which was allowed as follows :
The appellant has utilized the Cenvat credit for payment of education Cess on final products in respect of which exemption under said notification is availed of and since Education Cess is also a Duty of excise, I hold that the appellants action is correct and is in conformity with the Cenvat Credit Rules, 2004.
7.?The above view was upheld by the Tribunal while dismissing appeal of the Revenue against the above order. It was held that there was no bar to utilize Cenvat credit of Basic Excise Duty for payment of Education Cess.
8.?Since the view taken by the Tribunal is in conformity with the view taken by this Court referred to above, the question of law raised by the Revenue has to be decided against it and answered in the affirmative.
8. Considering the fact that the said issue has already been settled by the Hon'ble High Court of Gauhati in the case Kamakhya Cosmetics & Pharmaceutical Pvt. Limited, therefore, we hold that respondent can utilise the Cenvat credit of Basic Excise Duty for payment of Education Cess. The case law relied by the AR has been recalled by this Tribunal therefore, the same has no relevance to the facts of the case. In that circumstance, we do not find any infirmity in the order passed by the Commissioner (Appeals) and the same is upheld. Appeal filed by the Revenue is dismissed.
In view of the above, we hold that assessee can utilise Cenvat credit of input/ capital goods of Basic Excise Duty for payment of Education Cess.
3. In view of this, the appeals filed by Revenue has no merit and are dismissed. The appeal filed by assessee stand allowed. Cross objection filed by the assessees also disposed in the above terms. (Order dictated and pronounced in the court) Anil G. Shakkarwar Member (Technical) Ashok Jindal Member (Judicial) KL 3 Appeal Nos. E/2066, 2404, 2631/2007, E/100/2008, E/2462-2463/2008