M\/s. Sindia Steels Ltd. Versus CCGST, Nashik
Central Excise
2019 (2) TMI 380 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 23-1-2019
Appeal No. E\/86271\/18 – A\/85176\/2019
Central Excise
Dr. Suvendu Kumar Pati, Member (Judicial)
\nShri S.M. Vaidya, Consultant for the appellant
\nShri M.R. Melvin, Supdt. (AR) for the respondent
\nORDER
\nAvailment of cenvat credit on Education Cess & Secondary and Higher Secondary Education Cess against purchase of inputs for manufacture from 100% EOU for manufacturing was held inadmissible by the Commissioner (Appeals) that resulted in confirmation of duty demand along with interest and equivalent penalty against the appellant which is being assailed in this appeal.
\n2. The brief facts of the case is that appellant manufactures bright bar of stainless steel, and mild steel and mild steel wire. It has registered under the Central Excise Act. It availed cenvat credit on inputs for such manufacturing. During investigation made in Janu<\/p>\n
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Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n dicating authority that was dismissed in respect of appellant company but allowed in respect of the Director absolving the penalty imposed on him. The present appeal is preferred by the appellant challenging part rejection of its appeal in respect of duty demand interest and penalty on the appellant company = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n the Commissioner (Appeals) who referred to the decision of the Hon'ble Supreme Court held in Ind-Swift Lab reported in 2011 (265) ELT 3 (SC). In citing decision of this Tribunal reported in 2018-TIOL-1034-CESTAT-MUM in the case of JSW Jaigarh Port, learned AR also submitted that after analysing the judgment in Ind-Swift Lab and Bilforge cited supra though penalty was waived off, interest liability was upheld. Referring to the factual aspect of the case that such wrong availment of cenvat credit was noticed after gathering intelligence information, Learned AR submitted that had the same not been noticed, on the strength of intelligence report appellant would have continued to avail the inadmissibility credit for which interference in the order of the Commissioner (Appeals) is uncalled for. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n use (vii) it is very much clear that all those duties of excise specified under clause 1, 2,3,4,5, 6 and 6A, against which availment of cenvat credit is permissible, are equally applicable to additional duty leviable under section 3 of Customs Tariff Act. So there is no doubt that Education Cess & Secondary and Higher Secondary Education Cess paid against additional duty leviable under section 3 of Customs Tariff Act are covered under cenvat credit permitted to be taken under Rule 3(1) of Cenvat Credit Rules 2004. Further, in respect of additional duty leviable under sub-section (5) of Section 3 of the Customs Tariff Act, nothing has been mentioned in Rule 3(1) of Cenvat Credit Rules 2004 that Education Cess & Secondary and Higher Secondary Education Cess paid on those duty is also included for availment of credits by the manufacturer. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n of Section 3 of the Customs Tariff Act. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n","protected":false},"excerpt":{"rendered":" M\/s. Sindia Steels Ltd. Versus CCGST, NashikCentral Excise2019 (2) TMI 380 – CESTAT MUMBAI – TMICESTAT MUMBAI – ATDated:- 23-1-2019Appeal No. E\/86271\/18 – A\/85176\/2019Central ExciseDr. Suvendu Kumar Pati, Member (Judicial) Shri S.M. Vaidya, Consultant for the appellant Shri M.R. Melvin, Supdt. (AR) for the respondent ORDER Availment of cenvat credit on Education Cess & Secondary … Continue reading “M\/s. Sindia Steels Ltd. Versus CCGST, Nashik”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-16638","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/16638","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=16638"}],"version-history":[{"count":0,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/16638\/revisions"}],"wp:attachment":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=16638"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=16638"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=16638"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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\n3. In his memo of appeal and during course of hearing of the appeal, learned counsel for the appellant submitted that appellant had been availing credit as audit conducted twice found no irregularity in such availment but it had accepted its mistake in availing cenvat credit on Education Cess & Secondary and Higher Secondary Education Cess during the period between February 2011 and March 2011 and reversed the same immediately after it was brought to its knowledge by the excise official and such credit was only taken in its account but never utilised. In citing Larger Bench decision of this Tribunal in the case of JK Tyres & Inds. reported in 2016 (340) ELT 193 (Tri-LB) he also poi<\/p>\n
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\n5. Heard from both sides at length, perused the case records, relied upon decisions, relevant provision of law and also written submissions of the appellant. Going by the show- cause notice and the <\/p>\n
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\n6. Going by Section 126 and 129 of the Finance Act it is very much clear that Secondary and Higher Secondary Education Cess levied under section 126 is<\/p>\n
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\n7. In respect of taking of cenvat credit and its utilisation the learned counsel for the appellant had submitted relied upon the larger bench decision of J.K. Tyre, cited supra in which mear taking of credit is differentiated from its utilisation. Therefore, mere taking of cenvat credit in the book of account would not entail interest and penalty unless the same is drawn from the account of the government by way of refund or utilisation against duty dues. Moreover having regard to the fact that even the intelligence wing officials of the Excise department, who conducted investigation are unaware that higher education cess is not to be attached to sub-rule (5) of Rule 3 of Customs Tariff Rules, and issued show-cause to the appellant, the same itself is sufficient indication that even experts in the field of taxation also misinterpreted the provisions due to inadequate understanding. So the case of the appellant can be considered as a bonafide di<\/p>\n
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