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2024 (2) TMI 446 - AT - CustomsSustainability of cess, when basic customs duty itself was Nil - contention of the department is barring the basic customs duty, other duties namely EC, SHEC and SWS ought not to have been debited in the duty credit scrips - HELD THAT:- The decision of M/S. UNICORN INDUSTRIES VERSUS UNION OF INDIA & OTHERS [2019 (12) TMI 286 - SUPREME COURT] dealt with the learned adjudicating authority stand referred to a Larger Bench of the Apex Court in SRD NUTRIENTS PVT. LTD. VERSUS COMMR. OF CENTRAL EXCISE, GUWAHATI [2022 (1) TMI 615 - SUPREME COURT]. The period involved in this case is from June-2017 to January-2018. The decision of UNICORN INDUSTRIES Vs. UNION OF INDIA was clearly distinguishable as in that case the duty as an NCCD was being levied as a separate ad valorem duty under different legislation and was not required to be worked out on the basis of a ‘Nil’ Excise Duty which in that case was specifically exempted for Area Based Exemption Notification. However, in the instant case as has been upheld in the matter in their own case LOUIS DREFUS COMPANY INDIA P LTD VERSUS COMMISSIONER OF CUSTOMS (IMPORT –II) , MUMBAI [2023 (11) TMI 972 - CESTAT MUMBAI] which followed decision of LA TIM METAL & INDUSTRIES LIMITED VERSUS THE UNION OF INDIA AND ORS. [2022 (11) TMI 1099 - BOMBAY HIGH COURT], it has been held that when cess as in this case was collected as percentage of duty liability and which is exempted under any notification the cess could not be computed in the face of Zero duty liability. We have agreed with the proposition that the Cess based on ‘Nil’ total duty has to be ‘Nil’ if machinery provision are clothed in such language and do not make levy an independent ad velorem duty. But same needs to be examined in detail to the specifics of the case including for C.V.D/ I.G.S.T component, if any during impugned period and language of the statutory provision relied upon by the appellant. Same therefore is remanded back. Other question relating to limitation and penalty shall be decided accordingly, considering quantum, legality of issues and malicious intention objectively - appeal allowed by way of remand.
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