(Per : HONOURABLE MR.JUSTICE V. M. SAHAI) 1. We have heard learned counsel Mr.R.J.Oza, assisted by learned counsel Ms.Mittal Gokani for the appellant and learned counsel Mr.D.K.Trivedi for the respondent.
2. This Tax Appeal has been filed under Section 35-G of the Central Excise Act, 1944 on the following two proposed substantial questions of law, which are extracted below:-
“(i) Whether, in the facts and circumstances of the case, the CESTAT has correctly come to the conclusion that under rule 3(7)(b) of the Cenvat Credit Rules, the amount to be paid towards education cess has been rightly deducted as Cenvat credit ?
(ii) Whether in the facts circumstances of the case, the CESTAT can rely upon the judgment rendered in another case, without even discussing the merits of the present case ?”
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.
[V.M.SAHAI, J.] ..mitesh..
[N.V.ANJARIA, J.]