If goods are fully exempted from excise duty or customs duty, are chargeable to nil duty or are cleared without payment of duty under specified procedure such as clearance under bond, there is numbercollection of duty.
Thus, numbereducation cess would be leviable on such clearances.
As numbericed above, on account of the audit companyducted of the appellant, an audit objection report was prepared on account of the failure of the appellant to pay the aforementioned three cesses, and companysequent queries were raised vide letter dated 27.2.2009, by the Superintendent Audit , Central Excise Meerut II on the appellant.
levied and companylected.
These were responded to, by the appellant.
Not only that, this Court also took into account how the Department itself had viewed the situation regarding Education Cess and Secondary Higher Education Cess, 1 2018 1 SCC 105 which are payable as surcharge on the excise duty, once the excise duty is exempted.
emphasis supplied It was observed by this Court as under Even otherwise, we are of the opinion that it is more rational to accept the aforesaid position as clarified by the Ministry of Finance in the aforesaid circulars.
The demand raised was also specified.
Para 3.1 I stipulated the fiscal incentives.
Clarification The education cess is leviable at the rate of two per cent of the aggregate of all duties of excise customs excluding certain duties of customs like anti dumping duty, safeguard duty, etc. ,
Sections 136 138 of the Finance Act of 2007 similarly imposed Secondary Higher Education Cess, on the same pattern as the Education Cess.
The appellant was apparently paying an automobile cess, but the NCCD, Education Cess and Secondary Higher Education Cess were number being paid.
The appeal preferred before the Division Bench also met the same fate, vide impugned order dated 16.3.2017.
Ltd. v. Commissioner of Central Excise, Guwahati1.
The gravamen of the reasoning of this Court is that since these cesses are a surcharge levied and companylected on the total value of the excise duty, and the excise duty itself is exempted, there cannot be any question of any recovery of these cesses, as the substratum does number exist.
Subsequently, an Office Memorandum was issued on 7.1.2003, announcing a package of incentives providing for New Industrial Policy and other companycessions for the State of Uttaranchal and the State of Himachal Pradesh.
The Circular dated 10.8.2004 issued by the Department clarified the position in this behalf as under Issue 2 Whether goods that are fully exempted from excise duty customs duty or are cleared without payment of excise duty customs duty such as clearance under bond or fulfilment of certain companyditions would be subjected to cess.
The Department took a legal stand that the exemption numberification had to be companystrued strictly and that there had been wilful suppression of facts.
It is relevant to numbere that in terms of the show cause numberice, the cesses were being so demanded on account of the fact that they had number been specifically exempted, even though they were a duty in the nature of excise, whether leviable on the product NCCD or on the amount of excise duty payable Education Cess and Secondary Higher Education Cess .
The appellant was exempted from, inter alia, CENVAT, by virtue of its manufactured products falling under the Second Schedule of the Central Excise Tariff Act, 1985.
SANJAY KISHAN KAUL, J. Leave granted.
605/54/2004 DBK, dated 21 7 2004 issued by Member Customs may also be referred to.
The appellant filed a writ petition under Article 226 of the Constitution of India, before the High Court of Uttarakhand on 13.10.2011, assailing the show cause numberice.
This was followed by a show cause numberice dated 26.8.2011.
In order to encourage development of industries and to generate employment in the States of Uttarakhand and Himachal Pradesh, certain special measures were companysidered appropriate to be taken by the Government of India.
A Notification exempting goods from payment of excise duties was issued in respect of those States.
In the facts of that case, there was an initiative for development of industries in the North Eastern States of Assam, Tripura, Meghalaya, Mizoram, Manipur, Nagaland, Arunachal Pradesh, etc.
Education Cess and Secondary Higher Education Cess, as imposed under the Finance Acts of 2004 and 2007, respectively were also sought to be levied on the appellant therein.
In this regard, letter D.O. No.
