COMMISSIONER OF CENTRAL EXCISE, DAMAN Vs. PVN FABRICS

JUDGEMENT

(1.) THE facts of the case, in brief, are that the appellant procured inputs from M/s. Reliance Industries Ltd., a 100% EOU and availed CENVAT Credit. The Department observed that the said 100% EOU is paying duty equal to the aggregate of duties of Customs as per proviso to Section 3(1) of Central Excise Act read with S.No. 1 of Notification No. 23/2003 -C.E., dated 1 -3 -2003. The said 100% EOU was paying education cess and higher education cess CVD, total of CVD and Customs duties and again on duty of Excise equal to aggregate of duties of Customs. The Department entertained a view that the appellant is not eligible for CENVAT Credit of education cess and higher education cess paid on duty of Excise equal to aggregate duties of Customs. Accordingly, a Show Cause Notice dated 30 -9 -2009 was issued to the appellant, which after due process of law, was adjudicated vide impugned order dated 6 -9 -2010, wherein the original authority held that the appellant is not eligible for credit of education cess and higher education cess paid by 100% EOU on duty of Excise equal to aggregate duties of Customs and accordingly confirmed demand of Rs. 4,89,392/ - along with interest and imposed equivalent penalty.

(2.) THE appeal filed by the assessee was allowed in the impugned order, relying upon the decision of the Tribunal in the case of Emcure Pharmaceuticals Ltd. - 2008 (225) E.L.T. 513 (Tri. -Mumbai). Revenue is in appeal against this decision.

(3.) HEARD both the sides and considered the statutory provisions and the records. In the normal course, it would have been sufficient to rely upon the decision in the case of Emcure Pharmaceuticals Ltd. since there is no dispute that the decision of the Tribunal is applicable to the facts of this case also. Nevertheless, the ld. AR submitted that Emcure Pharmaceuticals Ltd.s decision is not applicable and presented detailed arguments. Therefore, I proceed to consider the submissions made by ld. AR and examine whether Emcure Pharmaceuticals Ltd.s decision is to be followed or not.