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2018 (11) TMI 1374 - AT - Central ExciseLevy of Tea Cess - export of tea under bond under Rule 19 of the Central Excise Rules without payment of any duty - Department took the view that even for export under bond, cess as applicable was payable by the appellants - whether the appellants on export of tea are required to discharge Tea Cess which is otherwise leviable under Section 25 of the Tea Act, 1953? Held that:- The exemption extended to tea produced and exported by EOUs from levy and collection of Cess, the exemption was brought about by Notification dt. 1.9.2004 which was published in the Gazette of India Part-Ii Section 3 of 1st September 2004. In this regard, the exports by EOUs are on different footing from export goods under bond by manufacturer / assessees in the DTA. For the latter, during the period of dispute, erstwhile provisions of Rule 19 of Central Excise Rules, 2002 would be applicable. Hence for these reasons we are of the firm conclusion that the exemption granted to EOUs vide the above notification cannot be used in support of proposition that by implication export made by DTA units will be exigible to Cess. The Section 37B Order dt. 13.1.2006 clearly states that “Past instructions, Circulars and Orders on the issue may be considered as suitably modified” - there has been no instruction or order etc. issued earlier to 13.01.2006 to the effect that Tea Cess being duty of excise is required to be collected in respect of exports made by DTA units, such as the appellants. In any case, even if there had been any such instruction, that would obviously have got nullified by the said 37B order dated 13.01.2006. Tea Cess being collected as duty of excise as per Section 25 of the Tea Act, 1953, in view of Section 37B Order dt. 13.1.2006, cannot be collected in respect of exports under bond made by the appellants. The manner of preparation of tea and the process of manufacture of ‘instant tea powder’ cannot take away ‘instant tea” out of the definition of ‘tea’ under the Act, the Hon’ble Apex Court has held that the latter is also leviable for levy of cess under Section 25 of the said Act - post-Section 37B order, there should not be any doubt or confusion that cess under Section 25 of the Tea Act 1953 is not required to be paid in respect of exports under bond by DTA units, like the appellants. Appeal allowed - decided in favor of appellant.
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