The Ahmedabad Bench of the Customs, Excise and Service Tax Appellate Tribunal ( CESTAT ), upheld utilization of cenvat credit of basic excise duty for discharge of education cess.
Pursuant to Audit, a notice to show cause was issued seeking recovery under section 11A of the Central Excise Act, 1944, a duty of Rs. 14 lakhs in respect of aforesaid five machines transferred by the appellant, M/s. Jyoti CNC Automation Pvt Ltd to its additional premise on the ground that the said additional premise is not registered under the Act.
Hence the benefit of duty exemption under notification no. 67/95-CE envisaged for captive consumption is not admissible to the appellant and further sought recovery of cenvat credit of basic excise duty amounting to Rs. 13 lakhs on the ground that the same is wrongly utilized for payment of education cess.
The secondary and higher education cess as both the cess are not considered excise duties and there is no provision in the Cenvat Credit Rules, 2004 which permits utilization ofbasic central excise duty for payment of education cess and secondary and higher education cess levied on final goods.
The Commissioner (Appeals) upheld the demand of duty pertaining to clearance of five machines in dispute and set aside the demand in respect of utilization of cenvat credit of basic excise duty towards the payment of education cess and higher and secondary education cess.
The Counsel for the appellant submitted that the said issue is covered by several decisions and the department has not preferred appeal against the said ordered hence attained finality.
A Bench consisting of Ramesh Nair, Judicial Member and Raju, Technical Member observed that “Since department has not preferred appeal against the said OIA and hence said order has attained finality in respect of issue of utilization of cenvat credit of basic excise duty towards discharge of education cesses.”
Subscribe Taxscan Premium to view the JudgmentSupport our journalism by subscribing to Taxscan premium. Follow us on Telegram for quick updates
