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2023 (11) TMI 972 - CESTAT MUMBAIDischarge of ‘education cess’ and ‘secondary & higher education cess’ that had been debited against scrip issued under the Merchandise Exports from India Scheme (MEIS) in the Foreign Trade Policy (FTP) - HELD THAT:- In terms of the decision of Hon’ble High Court of Bombay in LA TIM METAL & INDUSTRIES LIMITED VERSUS THE UNION OF INDIA AND ORS. [2022 (11) TMI 1099 - BOMBAY HIGH COURT], it would appear that the proposal for recovery itself was flawed inasmuch as any cess collectible as percentage of duty liability, and which is exempted thereof under any notification, could not be computed in the absence of any duty liability. It is also on record that circular no. 3/2022 dated 1st February 2022 of Central Broad of Indirect Taxes & Customs (CBIC) relates to ‘social welfare surcharge’ and it is quite likely that lack of specific reference to this surcharge precluded acceptance of the submission in the impugned order. The Hon’ble High Court of Madras in M/S. KTV HEALTH FOOD PVT. LTD. VERSUS THE COMMISSIONER OF CUSTOMS (PREVENTIVE) , TIRUCHIRAPALLI [2021 (10) TMI 119 - MADRAS HIGH COURT] had held that When such a circular was issued by the Customs Department and the same having been implemented in respect of various people like the petitioner, the benefit of the said circular cannot be denied to the petitioner on the alleged reason that, the education cess or the higher and secondary education cess being a different component cannot be treated as customs duty or additional customs duty and therefore, the benefit conferred under Clause 11 of the said circular cannot be made available to the petitioner. In view the decisions cited supra and the clarification of Central Board of Indirect Taxes & Customs (CBIC), nothing survives in this matter - the impugned order is set aside - appeal is allowed.
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