Custom, Excise & Service Tax Tribunal
Rajkot vs Vvf Ltd on 9 October, 2018
In The Customs, Excise & Service Tax Appellate Tribunal
West Zonal Bench At Ahmedabad
Appeal No. E/578, 592/2012-DB
[Arising out of OIA- OIA-177/2012/COMMR-A-/RBT/RAJ dated 03.04.2012 passed by the
Commissioner of Central Excise, Customs and Service Tax-RAJKOT]
M/s Vvf Ltd
C.C.E. & S.T., - Rajkot Appellant
Vs
C.C.E. & S.T., - Rajkot
M/s Vvf Ltd Respondent
Represented by:
For Appellant: Ms. Dimple Gohil (Advocate) For Respondent: Shri L. Patra (A.R.) CORAM:
HON'BLE MR. RAMESH NAIR, MEMBER (JUDICIAL) HON'BLE MR. RAJU, MEMBER (TECHNICAL) Date of Hearing/Decision: 09.10.2018 Final Order No. A / 12430-12431 /2018 Per: Ramesh Nair The issue involved in this case is that whether the appellant is entitled to utilize Cenvat Credit of basic excise duty for payment of Education Cess and Secondary & Higher Education Cess.
2. Ms. Dimple Gohil Ld. Counsel appearing on behalf of the appellant submits that the issue in no longer res-integra as in the following judgments, it has been settled that Cenvat Credit can be utilized for payment of Education Cess & Secondary and Higher Education Cess.
Dharmpal Satyapal Ltd. Vs. CC., & C.EX., Shillong 2015 (323) ELT 55 (guj.) Union of India Vs. Kamakhya Cosmetics & Pharmaceutical Pvt. Ltd 2015 (323) ELT 33 (gau.) CCE, Cus., & ST, Vapi Vs. M/s Madura Industries Textiles 2012-
TIOL-1094-HC-AHM-CX
2|Page E/578, 592/2012-DB
SRD Nutrients Pvt. Ltd Vs. CCE, Guwahati 2017 (355) ELT 481 (SC) Rama Cylinders Pvt. Ltd Vs. CCE & ST., Rajkot 2016 (339) ELT 147 (Tri.-Ahmd.) She also submits that in the appellant's own case, the issue has been decided in their favour by this Tribunal vide Final No. A/13586/2017 dated 23/11/2017.
3. Sh. L. Parta Ld. Assistant Commissioner (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order.
4. On careful consideration of the submissions made by both the sides and perusal of the records, we find that the issue involved is that whether the appellant is entitled for utilization of Cenvat Credit in respect of basic excise duty for payment of Education Cess and Secondary & Higher Education Cess. This issue has been time and again considered by this Tribunal, various High Courts and Supreme Courts and held that Cenvat Credit can be utilized for payment of Education Cess and Secondary & Higher Education Cess for the reason that there is no bar in Rule 3 of Cenvat Credit Rules, 2004 for such utilization. The Education Cess and Secondary and Higher Education Cess were nothing but duty of excise. The terms Cenvat Credit provided under Rule 3 is includes the amongst others, basic excise duty. In terms of the said Rule the said Cenvat Credit can be utilized for payment of any duty of excise. As held by Hon'ble Supreme Court in the case of SRD Nutrients Pvt. Ltd (Supra) that Education Cess and Secondary & Higher Education Cess is also duty of excise, therefore, the Cenvat Credit can be utilized for payment of Education Cess and Secondary & Higher Education Cess which are nothing but duty of excise. This issue has been considered by
3|Page E/578, 592/2012-DB Hon'ble Guwahati High Court in the case of Union of India Vs. Kamakhya Cosmetics & Pharmaceutical Pvt. Ltd (Supra), this decision was again followed by the same Hon'ble High Court in the case of Dharmpal Satyapal Ltd. Vs. CC., & C.EX. Shillong (Supra).
5. In view of this settled legal position on the issue in hand, we are of the view that the appellant is clearly entitled for utilization of Cenvat Credit of basic excise duty for payment of Education Cess / Secondary and Higher Education Cess, accordingly, the demand is not sustainable hence, the same is set aside. The Revenue also filed appeal for seeking imposition of penalty which was dropped by the Commissioner. Since the demand itself is not sustainable, there is no question of any penalty. As a result, assessee's appeal is allowed and Revenue's appeal is dismissed.
(Operative portion of the order pronounced in the open court) (Raju) (Ramesh Nair) Member (Technical) Member (Judicial) Seema