CE.Ref. 4/2008 BEFORE HON’BLE THE CHIEF JUSTICE MR MADAN B. LOKUR HON’BLE MR. JUSTICE A.K. GOSWAMI (MADAN B. LOKUR, CJ) In this appeal under Section 35G of the Central Excise Act, 1944 the fol lowing substantial question of law has been framed for consideration:- Whether NCC Duty (National Calamity Contingent duty) is a duty exempted under N otification No.32/99-CE dated 08-07-1999 and, if not, whether CENVAT Credit und er the CENVAT Credit Rules, 2004, can be utilized, towards payment of such duty, which is not exempted under the said Notification. 2. The substantial question of law is really in two parts: The first part b eing whether NCC duty is exempted under Notification No.32/99-CE. If the answer to the first part is in the negative, then the second part is, whether CENVAT cr edit under the CENVAT Credit Rules can be utilized towards payment of NCC duty. Our answer to the first part of the question is in the negative and our answer t o the second part of the question is in the affirmative. 3. NCC duty is leviable under Section 136 of the Finance Act, 2001. Sub-sec tion (1) of Section 136 of the Finance Act makes it clear that NCC duty is by wa y of a surcharge and is a duty of excise. NCC duty is chargeable on goods specif ied in 7th Schedule of the Finance Act and is in addition to any other duties of excise chargeable on such goods under the Central Excise Act, 1944 (for short the Excise Act ). In terms of Section 136(3) of the Finance Act the provisions o f the Excise Act and the Rules made thereunder relating to refunds and exemption s from duties etc. apply in relation to the levy and collection of NCC duty. 4. From the above, it is quite clear that NCC duty is nothing but a duty of excise and on this, learned counsel for both parties are ad idem. 5. Notification No.32/99-CE relates to exemption to North East States from excise duty and additional excise duty on goods cleared from certain units. This notification has been issued in exercise of powers conferred by sub-Section (1) of Section 5A of the Excise Act read with sub-Section (3) of Section 3 of the A dditional Duties of Excise (Goods of Special Importance) Act, 1957 and sub-Secti on (3) of Section 3 of the Additional Duties of Excise (Textile and Textile Arti cles) Act, 1978. By virtue of this notification the Central Government has exemp ted goods specified in the first and second schedule to the Central Excise Tarif f Act from so much of the duty of excise or additional duty of excise, as the ca se may be, leviable thereon under any of the said Acts as is equivalent to the a mount of duty paid by the manufacturer of goods other than the amount of duty pa id by utilization of CENVAT credit under the CENVAT Credit Rules, 2004. 6. It is clear from the above that the general exemption is only in respect of the duty of excise or additional duty of excise under any of the above Acts, namely, the Central Excise Act, 1944, the Additional Duties of Excise (Goods of Special Importance) Act, 1957 and the Additional Duties of Excise (Textile and Textile Articles) Act, 1978. The general exemption has absolutely no reference t o NCC duty which is levied as a surcharge under the provisions of the Finance Ac t, 2001. 7. Consequently, insofar as the first part of the substantial question of l aw framed above is concerned, it must be answered in the negative which is to sa y that NCC duty, even though it is a duty of excise, is not exempted under Notif ication No.32/99-CE. The operation of this notification is limited. 8. The second part of the substantial question of law would now arise, name ly, whether CENVAT credit can be utilized towards payment of NCC duty under the CENVAT Credit Rules. 9. In this regard it is necessary to go through the CENVAT Credit Rules, pa rticularly Rule 3(4) and Rule 3(7) thereof. 10. Rule 3(1) provides that a manufacturer or producer of a final product sh all be allowed to take CENVAT credit of the NCC duty leviable under Section 136 of the Finance Act, 2001. To this extent there is no dispute between the parties . 11. Rule 3(4) of the CENVAT Credit Rules is important and this reads as foll ows: (4) The CENVAT credit may be utilized for payment of - (a) any duty of excise on any final product; or (b) an amount equal to CENVAT credit taken on inputs if such inputs are removed as such or after being partially processed; or (c) an amount equal to the CENVAT credit taken on capital goods if such capital goods are removed as such; or (d) an amount under sub rule (2) of rule 16 of Central Excise Rules, 2002; or (e) service tax on any output service: Provided that while paying duty of excise or service tax, as the case may be, th e CENVAT credit shall be utilized only to the extent such credit is available on the last day of the month or quarter, as the case may be, for payment of duty o r tax relating to that month or the quarter, as the case may be: Provided further that the CENVAT credit of the duty, or service tax, paid on the inputs, or input services, used in the manufacture of final products cleared af ter availing of the exemption under the following notifications of Government of India in the Ministry of Finance (Department of Revenue),- (i) No. 32/99-Central Excise, dated the 8th July, 1999 [G.S.R. 508(E), dated 8th July, 1999]; (ii) No. 33/99-Central Excise, dated the 8th July, 1999 [G.S.R. 509(E), dated 8t h July, 1999]; (iii) No. 39/2001 <javascript:OpenNotifications(’MANU/EXCT/0011/2001’)>-Central Excise, dated the 31st July, 2001 [G.S.R. 565 (E), dated the 31st July, 2001]; (iv) No. 56/2002-Central Excise, dated the 14th November, 2002 [G.S.R. 764(E), d ated the 14th November, 2002]; (v) No. 57/2002-Central Excise, dated 14th November, 2002 [G.S.R.. 765(E), dated the 14th November, 2002]; (vi) No. 56/2003 <javascript:OpenNotifications(’MANU/EXCT/0042/2003’)>-Central E xcise, dated the 25th June, 2003 [G.S.R. 513 (E), dated the 25th June, 2003]; an d (vii) No. 71/2003 <javascript:OpenNotifications(’MANU/CUSN/0079/2003’)>-Central Excise, dated the 9th September, 2003 [G.S.R. 717 (E), dated the 9th September, 2003], shall, respectively, be utilized only for payment of duty on final products, in respect of which exemption under the said respective notifications is availed of . Rule 3(4) provides that CENVAT credit may be utilized, inter alia, for payment o f any duty of excise on any final product. To this extent also there is no dispu te between the parties. However, what is of importance is the second proviso to Rule 3(4) of the CENVAT Credit Rules. This provides that the CENVAT credit of du ty paid on inputs used in the manufacture of a final product cleared after avail ing of the exemption under Notification No.32/99-CE shall be utilized only for p ayment of duty on the final product in respect of which exemption under the said notification is availed of. It is clear from this that CENVAT credit of duty pa id on inputs shall be utilized only for payment of duty on the final product for which exemption is availed. 12. Rule 3(7) is equally important and this reads as follows: (7) Notwithstanding anything contained in sub-rule (1) and sub-rule (4),- (a) & & & & & (b) CENVAT credit in respect of,- (i) & & & & (ii) the National Calamity Contingent duty leviable under section 136 of the Fi nance Act, 2001 (14 of 2001); (iii) & & & &.. (iv) & & & &.. (v) & & & & & (vi) & & & & &.. shall be utilized only towards payment of & &. the National Calamity Contingent d uty leviable under section 136 of the Finance Act, 2001, & &. respectively, on an y final products manufactured by the manufacturer & &... (words not necessary are deleted) Rule 3(7) provides that notwithstanding anything contained in sub-Rule (1) and s ub-Rule (4), CENVAT credit in respect of NCC duty shall be utilized only towards payment of the NCC duty under Section 136 of the Finance Act, 2001 on any final product manufactured by the manufacturer. 13. Insofar as the assessee is concerned the contention urged was that CENVA T credit in respect of NCC duty can be utilized only for payment of NCC duty. Bu t this does not mean that CENVAT credit on basic excise duty cannot be utilized for payment of NCC duty on the final product. Simply put, the contention is that payment of NCC duty through utilization of CENVAT credit on basic excise duty i s not prohibited. The question is whether this is permissible or not. According to the Revenue, CENVAT credit on NCC duty can be utilized only for paying NCC du ty and CENVAT credit on basic excise duty cannot be utilized for paying NCC duty . 14. On the above broad facts, the matter was adjudicated before the Commissi oner of Central Excise at Dibrugarh and he came to the conclusion that CENVAT cr edit of duty paid on inputs can be utilized only for payment of duty on the fina l product as per the second proviso to Rule 3(4) but CENVAT credit on any other duty could not be utilized for payment of NCC duty. Accordingly, the said Commis sioner confirmed the demand of ‘ 82,07,125/- and passed an order for recovery of NCC duty from the assessee. 15. Feeling aggrieved, the assessee preferred an appeal before the Customs, Excise and Service Tax Appellate Tribunal at Kolkata. The appeal filed by the as sessee was registered as Excise Appeal EDM 648/2006. The CESTAT noticed the prov isions of Rule 3(4) as well as the provisions of Rule 3(7) of the CENVAT Credit Rules and held that though credit of NCC duty could be utilized for paying NCC d uty only, the restriction would not extend to utilization of credit of duty whic h is not specifically listed in Rule 3(7). The corollary to this argument is tha t since credit on basic excise duty is not mentioned in Rule 3(7), CENVAT credit on basic excise duty could be utilized for payment of NCC duty. 16. We are in agreement with the view expressed by the CESTAT. In terms of R ule 3(1) a manufacturer or producer of a final product is allowed to take CENVAT credit of NCC duty. Since NCC duty is admittedly a duty of excise, Rule 3(4) pr ovides that CENVAT credit may be utilized for payment of any duty of excise on a ny final product. Therefore, CENVAT credit of NCC duty may also be utilized for payment of any duty of excise on any final product in terms of Rule 3(4) subject to Rule 3(7). 17. Rule 3(7) limits the utilization of CENVAT credit in respect of NCC duty as also other duties mentioned in Rule 3(7)(b). It provides that CENVAT credit in respect of NCC duty and other duties shall be utilized towards payment of dut y of excise leviable under various statutes respectively. The use of the word r espectively in this regard is important inasmuch as it confines the utilization of CENVAT credit obtained to a particular statute and for utilization for payme nt of duty under that statute only. The converse, however, does not follow. That is to say that merely because CENVAT credit in respect of NCC duty can be utili zed only for payment of NCC duty, it does not follow that any other credit of du ty cannot be utilized for payment of NCC duty. 18. This being the position, in our opinion the Commissioner of Central Exci se at Dibrugarh was in error in coming to the conclusion that CENVAT credit of b asic excise duty cannot be utilized for payment of NCC duty on the final product . 19. Under the circumstances the second part of the substantial question of l aw must be answered in the affirmative and it must be held that while CENVAT cre dit of NCC duty can be utilized under the CENVAT Credit Rules only towards payme nt of such NCC duty, CENVAT credit obtained from other sources can be utilized f or payment of NCC duty on the final product. 20. The reference is answered accordingly. 21. We may note that a preliminary objection was raised about the maintaina bility of the appeal, but in the view that we have taken, it is not necessary to decide that issue.