TMI Blog2010 (3) TMI 718X X X X Extracts X X X X X X X X Extracts X X X X ..... Service Tax Appellate Tribunal (the Tribunal), following questions of law have been proposed stated to be substantial questions of law : (A) Whether the Learned Tribunal is justified in the eye of law in holding that the Education Cess is not leviable upon the Sugar Cess as the Sugar Cess is levied by the Ministry of Consumer Affairs, Food Public Distribution rather than by the Ministry of Finance, Government of India? (B) Whether the Learned Tribunal is justified in the eyes of law in holding that the Sugar Cess is not the duty of excise, though collected by the Department of revenue, so as to attract the Education cess thereupon? (C) Whether the Education Cess is leviable upon the Sugar Cess, in view of Section 3 of the Sugar Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1982 read with the Central Excise Act, 1944 in respect of the Education Cess? 2. Learned counsel for the appellant submitted that education cess is leviable at the prescribed rate on the aggregate of all duties of excise and therefore, would also include the cess levied and collected under the provisions of Sugar Cess Act, 1982 (the Cess Act). That the Tribunal has committed an error in law in placing reliance on the notification issued by Ministry of Consumer Affairs, Food Public Distribution for holding that as the sugar cess is not levied by Department of Revenue, Ministry of Finance, sugar cess cannot be considered for the purpose of levying and computing education cess. That the Tribunal has wrongly placed reliance on decisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oning adopted by Tribunal is not incorrect. Even a plain reading of the provisions of Cess Act would indicate that sugar cess levied and collected cannot be treated as central excise duty for the purposes of computing education cess. 5. Sections 3 and 4 of the Cess Act read as under : SECTION 3 : Imposition of cess : - There shall be levied and collected as a cess, for the purposes of the Sugar Development Fund Act, 1982, a duty of excise on all sugar produced by any sugar factory in India, at such rate not exceeding [twenty five rupees] per quintal of sugar, as the Central Government may, by notification in the Official Gazette, specify from time to time. (2) The duty of excise levied under sub-section (1) shall be in addition to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is levied under sub-section (1) is in addition to the duty of excise leviable on sugar under the Central Excise Act, 1944, or any other law for the time being in force. Once again, pointing out to the Scheme which is distinct from the provisions of the Central Excise Act read with the Tariff Act. When one reads sub-section (4) of Section 3 of the Cess Act, it becomes clear that for the purposes of levy and collection of the cess levied under sub-section (1) of Section 3 of the Cess Act, the procedural provisions relatable to levy and collection of the duty of excise, provisions relating to refund and exemption from duty, etc., are made applicable by invoking principle of incorporation. In other words, instead of bodily repeating the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the sugar development fund. To put it differently, amount which was collected by way of sugar cess under the Cess Act is in the first instance, credited to the Consolidated Fund of India and thereafter, by due appropriation made by the parliament by law credited to the sugar development fund. 10. For the present, it is not necessary to consider other provisions of the Sugar Development Fund Act, 1982 relating to application of the sugar development fund etc. Suffice it to state that the Cess Act and the Sugar Development Fund Act both have been brought on the statute book simultaneously on the same day and operate as a consolidated scheme and the provisions of both the Acts have to be read together. On such conjoint reading, it is a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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