Advocate Anandaday Misshra

The Notification No. 12/2015-C.E(N.T) dated 30.04.2015 has created a havoc in the industry as to what to do with the unutilized Cess lying as on 28.02.2015 i.e before 01.03.2015.

Before attempting on this issue , I must share that the sole intention behind issuance of this notification had been only for allowing utilization of credit of unutilized cess , lying as on 28.02.2015 ,towards payment of excise duty . Otherwise , this notification has no implication if any other meaning is drawn and understood.

However, it is pertinent to refer to all the provisos which have been introduced after second proviso in clause (b) of sub-rule (7) of Rule 3 of Cenvat Credit Rules,2004 as below

3rd Proviso- Utilisation of Education Cess and SHE Cess

“Provided also that the credit of Education Cess and Secondary and Higher Education Cess paid on inputs or capital goods received in the factory of manufacture of final product on or after the 1st day of March, 2015 can be utilized for payment of the duty of excise leviable under the First Schedule to the Excise Tariff Act:

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1. The expressions which have to be firstly understood are “cess paid , “goods received in the factory “. These expressions connote for a thing which had already been done .Therefore, the expressions like duty payable & goods to be received in the factory have not been used in this notification.

The expression “duty paid” and “not payable” can be well understood with respect to its significance in Cenvat Credit Rules,2004 from a quick reference to the ratio as laid down in Natco Pharma Ltd. v. Customs & C. Ex., Hyderabad-III reported in 2011 (274) E.L.T. 438 (T) wherein the Tribunal held that “Cenvat credit is not deniable alleging inputs being non excisable when duty has been paid on inputs. The Cenvat Credit Rule 3 is available for the duty “paid” and not duty payable.”

2. It is well known to all that from 01.03.2015, no cess is leviable on inputs and capital goods as it was subsumed in the excise duty .The excise duty structure was enhanced from aggregate of duty and cess @ 12.36% to a consolidated and subsumed duty of 12.50%.

Hence, inputs and capital goods would have suffered the incidence of cess prior to 01.03.2015 only .Such goods would have reached the factory of the manufacturer on or after 01.03.2015 .

Obviously , the goods under reference are those goods i.e inputs and capital goods which have already suffered cess prior to 01.03.2015 and they are referred here only .Hence, a different meaning cannot be drawn while interpreting this notification .

3. It is equally important that the text and context has to be understood to read the actual  intention of the legislation.The ratio as laid down by Honourable Apex court in the case of Reserve Bank of India v. Peerless Co. reported in (1987) 1 SCC 424 needs to be quickly referred as below

“33.Interpretation must depend on the text and the context. They are the basis of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to any as to fit   into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation, Statutes have to be construed so that every word has a place and everything is in its place.”

4. Going by the ratio as laid down under the aforesaid para, the 4rth Proviso clarifies the text and context as well .

5. Further, though it is the Courts which can apply the constructive interpretation however going by the doctrine of constructive interpretation read with practicality , the expression “on 01.03.2015” has to be read as “as on 01.03.2015 “ since any meaning other than the intended by the legislation will make this notification redundant .Even otherwise, the month of February ended on 28.02.2015 and balance left was be carried to 01.03.2015 and hence the expression “on or after 01.03.2015” has been used in the said notification .

4rth Proviso- Cess paid on capital goods

Provided also that the credit of balance fifty per cent. Education Cess and Secondary and Higher Education Cess paid on capital goods received in the factory of manufacture of final product in the financial year 2014-15 can be utilized for payment of the duty of excise specified in the First Schedule to the Excise Tariff Act:

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1. Again the expression used here are similar to what is existing under 3rd proviso i.e “cess paid “ & “goods received in the factory”. Above all , they are used to refer to year 2014-2015 i.e 01.04.2014 to 31.03.2015 which includes situation as on 28.02.2015 as well.

I must quickly share a well laid ratio in Central Bank of India v. Ravindra & Ors. reported in JT 2001 (9) SC 101 that Ordinarily, a word or expression used at several places in one enactment should be assigned the same meaning so as to avoid “a head-on clash” between two meanings assigned to the same word or expression occurring at two places in the same enactment.”

2. It must be noted that the 3rd proviso has allowed the utilization of the cess paid on goods i.e inputs and capital goods , which are received in the factory, towards payment of excise duty and 4rth proviso simply talks about the balance 50% of cess meant for capital goods and this itself clarifies the issue.

3. The 4rth Proviso is equally important to understand the intention which is clear by the ratio laid down by Honourable High Court of Andhra Pradesh in the matter of HYDERABAD ASBESTOS CEMENT PRODUCTS LTD. AND ANOTHER Versus UNION OF INDIA AND OTHERS -1987 (32) E.L.T. 28 (A.P.) to the effect that 

“10.It would be relevant to refer to the proviso to clause (ii) of the proviso to the main sub-rule 56A(2). It provides that even in cases where specified goods are manufactured out of the material or component parts which may not be dutiable under the same Tariff Item, even then if the Central Government has specifically sanctioned remission or adjustment of duty paid on them the manufacturer of such specified goods can claim benefit of the procedure of proforma credit as per Rule 56A(2). If the main proviso to sub-rule (2) of Rule 56A is read conjointly with clauses (i) and (ii) and the proviso to clause (ii), the intention of the rule-making authority is clear that all exciable specified goods are liable to get the benefit of proforma credit procedure provided the raw materials and component parts used in the manufacture of finished products have borne the exise duty under the same Tariff Item under which finished excisable goods are dutiable or alternatively if such raw materials and component parts are conferred with the benefit of remission or adjustment of duty paid on them under sanction by the Central Government. In both types of cases the main provision contained in Rule 56A(1) and (2) will operate without any limitations. If, however, any of the two situations above referred does Not exist, then the duty paid on the raw materials and component parts will not get the benefit of proforma credit procedure. It is not, therefore, possible to accept the contention of Sri Srinivasa Murthy that the proviso to sub-rule (2) of Rule 56A cannot be held to be an exception to the main provision.”

Hence, the intention can be drawn and understood from 4rth proviso and all provisos have to be read together to understand the implication and intention of legislation in its true perspective.

4. It must be understood that the allowing proviso for utilization of cess on inputs and capital goods is 3rd proviso whereas, 4rth proviso talks about the left over 50% cess of F.Y 2014-2015 only.

5. In other way, it talks about all unutilized credit of cess lying unutilized as on 31.03.2015 which includes a period as on 28.02.2015 as well.

5th Proviso – Cess paid on input services

Provided also that the credit of Education Cess and Secondary and Higher Education Cess paid on input services received by the manufacturer of final product on or after the 1st day of March, 2015 can be utilized for payment of the duty of excise specified in the First Schedule to the Excise Tariff Act.”.

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1. It has similar expression like what is existing under 3rd and 4rth proviso for utilization of cess paid on input services ,received by the manufacturer of final product on or after 1st day of March 2015, towards payment of duty .

Hence, the collective reading of all the proviso’s conclude that the notification is meant to allow unutilised cess lying as on 01.03.2015 including a period upto 28.02.2015 as well.

I hope the issue is clear as day light. However, it being a matter of an interpretation , it may interpreted differently amongst different school of thoughts .

(Advocate Anand Mishra, AMLEGALS– The author is a leading indirect tax advocate handling cases in CESTAT & High Courts of India. He can be contacted on anand@amlegals.com and for more please refer www.amlegals.com)

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I am a litigation & arbitration advocate. I am founder of a leading full service law firm AMLEGALS. I handle litigation in indirect taxes, Insolvency & Bankruptcy Code, IPR, Arbitration, Contracts etc in High Courts, Tribunals, Arbitral Tribunals and various Court of India.I have authored View Full Profile

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0 responses to “Unutilised Cess as on 28.02.2015 Vs. Notification No. 12/2015-C.E (N.T) dated 30.04.2015”

  1. T.Rame gowda says:

    Dear Sir,
    How to show it under ER-1, are there any notificatin nos we need to put in the ER-1
    Please clarify.

    Regards,

    T.Rame gowda

  2. mohit parihar says:

    sir import pr jo cess pay krenge use BED ke against setoff kr skte hai kya??????

  3. nagaraja n says:

    The plain language of the notification, according to me, allows utilisation of cenvat credit in respect of cess paid on inputs and input services received by the manufacturer on or after 01.03.15 and on capital goods received during the financial year 2014-15. The Government has ignored to address the treatment to be given for the closing balance of cess credit lying with a manufacturer on 28.02.15. Hence, unless Government comes out with clarification or amendment, audit, especially AGs audit is bound to raise objections to utilisation of such credits.

  4. Ashok Aggarwal says:

    I am impressed with the arguments put forth in this article but these arguments would be useful when one will have to fight it out in appellate fora because the departmental officers are definitely not going to allow utilization of the Credit of Cesses lying as on 28.02.15 for payment of Basic Excise duty and will issue SCNs.

    The Notification will be interpreted strictly and on plane reading one will interpret that Cess paid on only those goods which have been received in the factory on or after 01.03.15 could be utilized for payment of Basic duty.

  5. anand mishra says:

    Learned Friend Gorky Tiwariji

    You must be aware that there are different ways of interpretation i.e liberal, literal, strict , constructive etc .Strict interpretation are meant for exemption notifications and there are hundreds of decisions of Honourable Apex Court on this. Further, even in strict interpretation in exemption notification , exceptions have been carved out and it is not applied when it comes to encourage or address a problem of industry and this is also a very well settled law .

    The Notification 12/2015-C.E(N.T) is not an exemption notification and hence strict interpretation cannot be applied at all .

  6. CMA N P Viswanathan says:

    I don’t understand what all the hulla is about. The notification is plain and clear. There are three instances given in the Notification, as below :
    1. Where goods billed and despatched before 01.03.2015 are received by the assessee after 28.02.2015. In such cases, the Edu Cesses paid on such goods can be utilised as credit while making payment of Excise Duty from 01.03.2015 onwards. Where is the confusion?
    2. Where Capital Goods were received during FY 2014-15 and already 50% of the Cesses on ED has already been availed/utilised during 2014-15 (FY), on such capital goods, the balance 50% of Cesses can be utilised against payment of ED after 01.04.2015. Here, point to be noted is that by FY 2014-15, the Department means Capital Goods billed on and upto 28.02.2015.
    3. Service Tax continues to be subjected to Edu Cesses till the Presidential Assent is received for the Finance Bill, which is yet to happen. Hence, such Edu Cesses paid on the Service Tax till such time the rate of service tax is increased to 14%, can be utilised as credit and adjusted against payment of Excise Duty. It can, of course, continue to be utilised against payment of Edu. Cess on service tax on Output Sertvices till such time the Edu. Cesses on Service Tax gets subsumed in the rate of Tax.
    As for ER-1, ideally, the drop down box should show this Notfn (12/2015) for returns to be filed on or before 10th May, 2015. If not, it may be added in the remrks column at the end of the Return.

    CMA NP Viswanathan

  7. leelaram chaudhary says:

    Provided also that the credit of Education Cess and Secondary and Higher Education Cess paid on inputs or capital goods received in the factory of manufacture of final product on or after the 1st day of March, 2015 can be utilized for payment of the duty of excise leviable under the First Schedule to the Excise Tariff Act:

    It is a settled law that notifications are to be interpreted strictly. Thus, the notification cannot be interpreted in a way where it debars availment of cc of cess lying unutilized on 28-02-2015.

  8. Gorky Tiwari says:

    The intention of the notification is to remove the doubt regarding the fate of Edu Cess post 01-03-2015. Since cess will not be applicable on or after 01-03-2015, board has sought to clarify availment of edu cess in a situation where invoice was raised before 01-03-2015 but goods received in the factory on or after 01-03-2015. It is a settled law that notifications are to be interpreted strictly. Thus, the notification cannot be interpreted in a way where it debars availment of cc of cess lying unutilized on 28-02-2015.

  9. Manish says:

    I was also of the same belief as you. The context is important, again why would a matter of non dispute (that Central Government do understands and accepts the eligibility of accumulated cess balances), be settled through a Notification. Either it is established through the above referred ratios or hard as possible be clarified through Circular.
    Indeed the cases referred by you solidify the stance of eligibility.

  10. sachin says:

    Dear Sir,

    Thanks for your valuable clarrification, however as per my understanding we can pass a journal entry in the books of a/c & can utilised the Cess & H.E.Cess for payment of Excise Duty.

    But how to sho it under ER-1, are there any notificatin nos we need to put in the ER-1

    Reagards,

    Sachin

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