Custom, Excise & Service Tax Tribunal
Electrotherm India Ltd vs C.C.E. & S,T., Vadodara I on 28 July, 2017
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Zonal Bench, O-20, NMH Compound Ahmedabad Central Excise Appeal No.12019 of 2013-SM Arising out of the Order-in-Appeal No.184/2013(Raj)Central Excise/AK/Commr(A)/Ahd dated 25.4.2012 passed by the Commissioner (Appeals I), Central Excise , Ahmedabad. Electrotherm India Ltd .. Appellants Vs. C.C.E. & S,T., Vadodara I .. Respondent-
Appearance:
Present Shri Dhaval K. Shah, Advocate for the appellants Present Shri N. Satwani, A.R. for the Respondent-Revenue Coram: Honble Dr. D.M. Misra, Member (Judicial) Date of hearing:26.5.2017 Date of pronouncement:28.7.2017 Final Order No.A/11484/2017 Per Dr. D.M. Misra:
This appeal is filed against the Order-in-Appeal No. 184/2013(Raj)Central Excise/AK/Commr(A)/Ahd dated 25.4.2012 passed by the Commissioner (Appeals I), Central Excise , Ahmedabad .
2. Briefly stated the facts of the case are that during the relevant period i.e. January 2011 to March 2011, the appellant had utilized the CENVAT credit of Rs.17,46,775/- availed on Basic Excise Duty towards Education Cess and Secondary & Higher Education Cess. Alleging that utilization of said credit is irregular and contrary to the provision of Rule 3 of the Cenvat Credit Rules, 2004, a show cause notice was issued for recovery of the said credit along with interest and proposal for penalty. On adjudication, the demand was confirmed with interest and penalty of Rs.4.50 lakhs was imposed under Rule 15(1) of the Cenvat Credit Rules, 2004. Aggrieved by the said order the appellant filed appeal before the ld. Commissioner (Appeals), who in turn, rejected their appeal. Hence, the present appeal.
3. The ld. Advocate for the appellant submits that the issue of of utilization of basic excise duty in discharging liability of Education Cess and Secondary & Higher Education Cess is no more res integra and is covered by the judgment of the Honble Gujarat High Court in the case of C.C.E. & S.Tax, Vapi vs. Madura Industries Textiles 2012 TIOL 1094 HC AHM CX and also, by the Honble Gauwati High Court in the case of UOI vs. Kamakhya Cosmetics & Pharmaceutical Pvt. Ltd. 2015 (323) ELT 33 (Gau.). Further, he has submitted that this Tribunal has been consistently taking the same view in the case of Asia Motor works Ltd. vs. C.C.E. & S.Tax 2016 (338) ELT 419 (Tri-Ahmd.); Rama Cylinders Pvt. Ltd. v. C.C.E. & ST, Rajkot - 2016 (339) ELT 147 (Tri-Ahmd.).
5. Per contra, the ld. A.R. for the Revenue submits that since the appellant had availed area based exemption, therefore, the CENVAT credit availed on basic excise duty cannot be utilized in discharging their liability towards Education Cess and Secondary & Higher Education Cess. In support, he has referred to the judgment of this Tribunal in the case of C.C.& C.Ex, J & K vs. Bharat Box Factory Ltd. (Unit No.1) 2011 (265) ELT 366 (Tri-Del.) and C.C.& C.Ex., Shillong vs. Dharapal Satyapal Ltd. 2012 (275) ELT 71 (Gau.).
6. In his rejoinder, the ld. Advocate for the appellant submitted that the judgment in the case of Dharmapal Satyapal Ltd.s case (supra) has been subsequently recalled by Honble Gauhati High Court following the ratio laid down in Kamakhya Cosmetics & Pharmaceutical Pvt. Ltd.s case which is reported as Dharmapal Satyapal Ltd. 2015 (323) ELT 55 (Gau.).
8. Heard both sides and perused the record. I find that the issue is no more res integra being settled by the judgment of Honble Gujarat High Court in the case of Madura Industries Textiles(supra) and Honble Gauhati High Court in the case of Kamakhya Cosmetics & Pharmaceutical Pvt. Ltd.(supra) wherein it is observed that CENVAT credit availed on basic excise duty can be utilized towards discharging liability of Education Cess and Secondary & Higher Education Cess. Also, it has been brought to my notice that SLP proposed to be filed against the judgment Honble Gauhati High Court was declined by the Board. In the result, the impugned order is set aside and the appeal is allowed with consequential relief, if any, as per law.
(Pronounced in the open court on 28.7.2017) (Dr. D.M. Misra) Member (Judicial scd/ Appeal No.E/12019/2013-SM 3