Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise vs M/S Pvn Fabrics on 13 January, 2017
In The Customs, Excise & Service Tax Appellate Tribunal West Zonal Bench At Ahmedabad ~~~~~ Appeal No : E/192/2011 Application No : E/CO/71/2011 (Arising out of OIA-SKSS/213/DMN/NDMN/2010-11 dated 02/11/2010 passed by Commissioner (Appeals) of Central Excise, Customs and Service Tax-DAMAN) Commissioner of Central Excise, Customs and Service Tax-DAMAN : Appellant (s) Versus M/s Pvn Fabrics : Respondent (s)
Represented by:
For Appellant (s) : Shri L. Patra, Authorised Representative For Respondent (s): Shri S. J. Vyas, Advocate CORAM :
Dr. D. M. Misra, Hon'ble Member (Judicial) Date of Hearing / Decision : 13.01.2017 ORDER No. A/10054 / 2017 dated 13.01.2017 Per : Dr. D. M. Misra Heard both sides.
2. This is an appeal filed against OIA No. SKSS/213/DMN/NDMN/2010-11 dated 02/11/2010 passed by the Commissioner (Appeals) of Central Excise, Customs and Service Tax-DAMAN.
3. Briefly stated the facts of the case are that the Respondent are an 100% EOU, engaged in the manufacture of PP/HDPE Woven Sacks, Fabrics falling under Chapter 39 of CETA, 1985. During the period June 2007 to August 2008, they have availed CENVAT credit on inputs, namely, P & P Granules received from M/s Reliance Industries Ltd. Jamnagar. Alleging that they have availed excess credit of Rs. 2,64,261/- on the CVD and also erroneous credit of Rs.10,61,490/- on Education Cess and Secondary Higher Cess, a demand notice was issued to them on 26.08.2009 for recovery of the total inadmissible credit of Rs.13,33,687/-. On adjudication, the demand was confirmed and equal amount of penalty imposed. The Ld. Commissioner (Appeals), upheld the impugned order to the extent of payment of excess CVD availed as credit amounting to Rs. 2,64,261/- and set-aside the demand of 10,69,426/-. Aggrieved by the same, the Revenue is an appeal.
4. Ld. AR for the Revenue reiterating the grounds of the appeal submitted that on a plain reading of the relevant provisions of CENVAT Credit Rules, namely, Rule 3(7)(a) of CCR, 2004, it is clear that the Respondents are not eligible to avail the entire credit of Education Cess and Secondary Higher Cess, but a proportionately, as is applicable to credit on inputs and capital goods. The Ld. AR submits that since the credit is restricted in relation to inputs and capital goods, therefore, it is necessarily to be inferred that education cess and Secondary & Higher Education Cess are also included under the scope of the said Rule while calculating the extent of credit admissible to on the inputs received from an 100% EOU, similarly that of CVD and BCD.
5. Ld. Advocate Shri S. J. Vyas for the Respondent submits that the issue has been addressed by this Tribunal in their own case vide Order No. A/1542-1543/2012 dated 22.10.2012. It is his contention that following an earlier decision of the Tribunal in the case of Emcure Pharmaceuticals Ltd- 2008 (225) ELT 513 (Tri.-Mumbai) and analysing the relevant provisions of Cenvat Credit Rules, 2004, this Tribunal observed that the respondent are eligible to full credit of Education Cess and Higher Secondary Education Cess and applicability of proportionate credit is only in respect of CVD and BCD.
6. I find that in the judgement of Tribunal in the case of M/s Emcure Pharmaceuticals Ltd and the respondents own case, it has been categorically observed that the respondent are eligible to avail CENVAT credit on Education Cess and Secondary Higher Education Cess, after interpreting the relevant Rule 3 (7) (a) of CCR, 2004; no contrary decision has been placed by the Ld. AR for the Revenue. In these circumstances, I do not see any reason to record a different finding from the one recorded in the above two decisions of this Tribunal. Consequently, the impugned order is upheld and Revenues appeal being devoid of merit is rejected. CO disposed of.
(Dictated and pronounced in the Court) (D. M. Misra) Member (Judicial) G.Y. ??
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