M/S. Asia Motor Works Limited vs Commissioner Of Central Excise & S.T., ...

(Arising out of OIA-95/2012/COMMR-A-/RBT/RAJ dated 24.02.2012, Passed by Commissioner (Appeals) Central Excise, & S.T., Rajkot)

M/s. Asia Motor Works Limited : Appellant (s)

VERSUS

Commissioner of Central Excise & S.T., Rajkot : Respondent (s)

Represented by :

For Appellant (s) : Ms. Dimple Gohil, Advocate For Respondent (s) : Shri Lalatendu Patra, Authorised Representative

For approval and signature :

Mr. P.K. Das, Honble Member (Judicial)

1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether their Lordships wish to see the fair copy of the Order?

Seen 4 Whether Order is to be circulated to the Departmental authorities?

Yes

CORAM :

Mr. P.K. Das, Honble Member (Judicial)

Date of Hearing / Decision : 26.05.2015

ORDER No. A/10683/2015 Dated 26.05.2015

Per : Mr. P.K. Das;

After hearing both the sides and on perusal of the records, I find that the issue involved in this case is as to whether the appellant is to be allowed utilisation of CENVAT credit of basic excise duty for payment of Education Cess and Secondary and Higher Education (SHE) Cess. The learned Advocate for the appellant submits that as per Rule 3(7) (a) of the Central Excise Rules permits utilisation of basic excise duty for payment of Education Cess and SHE Cess. She relied upon Honble Gujarat High Court judgment in the case of Commissioner of Central Excise, Customs & Service Tax, Vapi vs. M/s. Madura Industries Textiles  2012-TIOL-1094-HC-AHM-CX. The relevant portion of the said decision is reproduced below:-

3. The respondent paid the Education Cess for utilizing the Cenvat Credit of basic excise duty available in the Cenvat credit account. The department demanded the duty and also imposed penalty. The Commissioner (Appeals) allowed the appeal and therefore, the department filed second appeal before the Customs, Excise and Service Tax Appellate Tribunal ('the Tribunal' for short). The Tribunal dismissed the appeal of the appellant on the ground that the benefit of utilization of credit of basic excise duty for payment of Education Cess could be allowed. It is necessary to extract Paragraph No.3 of order of the Tribunal, which is as under:-

3. I have considered the submissions. The very same issue had come up before this Tribunal also and in case of CCE Vapi Vs. M/s Balaji Industries as reported in 2008(232) ELT 693 (Tri-Ahmd.) This Tribunal had also allowed the benefit of utilization of credit of basic excise duty for payment of education cess. Further, as submitted by the respondent, there are several other decisions of the Tribunal rendered subsequent to the decision of M/s Sun Pharmaceutical, where similar view has been taken. The learned SDR could not submit a copy of the stay order also.

4. We agree with the view taken by the Tribunal; and the appeal is devoid of any merits. Both the substantial questions raised by the appellant do not involve any substantial question of law and therefore, the appeal is dismissed.

2. In view of the decision of the Honble Gujarat High Court in the case of M/s. Madura Industries Textiles (supra) the impugned order cannot be sustained and it is set-aside. The appeal filed by the appellant is allowed. (Order dictated and pronounced in the Court)

(P.K. Das) Member (Judicial) .KL

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