S.C.GUPTE, J. - (1.) These appeals, filed under Section 35G of the Central Excise Act, 1944, challenge an order dated 16th February, 2007 passed by the Customs Excise and Service Tax Appellate Tribunal, West Zone Branch, Mumbai (Tribunal) in appeal. The impugned order, Order No.A/107 to 110/2007/C.1(EB), passed in Appeal Nos.3/2183, 2184, 471, 3118/06, disposed of four appeals filed by the Assessee herein involving Cenvat credit in respect of inputs used for manufacture of exempted as well as dutiable goods without maintaining separate accounts for such use. Both the Assessee and the Revenue are in appeal before us from the common impugned order dated 16th February, 2007.
(2.) The Assessee's appeals (being Appeal Nos. 119, 202, 234, 145, & 120 of 2007 and 225 of 2008) were admitted on the following substantial questions of law : a) Whereas CESTAT was correct in law in holding in para 31, that though education cess levied and collected from the Appellants on tractors is a duty of excise, that tractors are exempted goods within the meaning of Rule 6(1), since tractors are wholly exempt from basic excise duty levied under Section 3(1) of Central Excise Act? b) Whether in the facts and circumstances of the case CESTAT was correct in invoking provisions of Rule 6(1) of the Cenvat Credit Rules, 2002 or Cenvat Credit Rules, 2004? c) Whether CESTAT was correct in concluding that expression 'duty of excise' appearing in Rule 2(d) of the Cenvat Credit Rules 2002 / Cenvat Credit Rules, 2004 while defining "exempted goods", will cover only duty prescribed in First Schedule and the Second schedule of the Central Excise Tariff Act, 1985 read with Section 3(1) of Central Excise Act, 1944 and no other duties of excise like education cess though duly specified in Rule 3(1) and Rule 3(3) of Cenvat Credit Rules, 2004? d) Whether, in law, CESTAT is correct in concluding that Rule 6(1) is attracted to the present case, despite the position that (i) duty of excise in the form of education cess under Section 93 of Finance Act, 2004 is duly levied and paid on tractors and / or (ii) duty of excise in the form of cess under Section 9 of Industrial (Development and Regulation) Act, 1951 is duly levied and paid on tractors? e) Whether in the facts and circumstances of the case, the CESTAT was correct in holding that an amount equal to 10% paid in terms of Rule 6(3)(b) of the Cenvat Credit Rules, 2004 is not tax and hence not excludable from the sale price of the exempted goods? f) Whether the decision of CESTAT that amount payable under Rule 6(3)(b) is not a tax is correct particularly in view of the paras 14 and 15 of the decision of the Hon'ble Supreme Court in Tata Iron and Steel Co. Ltd., v/s. CCE ­ 2002 (146) ELT 3 (SC). g) Whether in the facts and circumstances of the case CESTAT was correct in holding that amount of 10% is payable by the Appellate under Rule 6(3)(b) of the Cenvat Credit Rules, 2004 on the sale price charge by the Appellant for the tractors without excluding 10% payable in terms of Rule 6(3) (b)?
(3.) The Revenue's appeals (being Appeal Nos.220 and 221 of 2007) were admitted on the following substantial questions of law:- "(a) Whether on true and proper interpretation of Rule 6(1) of Cenvat Credit Rules 2004 the Assessee isnot entitled to take Cenvat Credit on the inputs used exclusively for manufacture of "Exempted Goods" i.e. Tractor w.e.f. 08-07- 2004?" (b) Whether the Tribunal is justified in holding that the Assessee is entitled to take Cenvat Credit on all inputs including inputs exclusively used in the manufacture of Exempted Final Product contrary to the provisions of Rule ­ 6(1) of Cenvat Credit Rules 2004? (c) Whether the Notification No.27/2005 ­ CE (NT) dated 16-05-2005 adding Explanation III to Rule 6 (3) only is not applicable to Rule 6(1) of Cenvat Credit Rules, 2004? (d) Whether the Notification No.27/2005-CE (NT) dated 16-05-2005 which clarifies the provisions of Rule 6 (3) of Cenvat Credit Rules 2004 is clarificatory in nature and therefore applicable retrospectively?" ;