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TMI Blog2011 (7) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed it to be an amount equal to the aggregate of the duties of customs which would be leviable under the Customs Act, 1962 or any other law for the time being in force on the like goods produced or manufactured outside India if imported into India and the aggregate of duties of customs chargeable under Customs Act, 1962 and any other law in force would be the basic customs duty plus Additional Customs duty equal to central excise duty chargeable including education cess plus education cess on total customs duty. The Adjudicating Authority also held that duty mentioned under Section 3 of the Act being only Central Excise duty the Education Cess @ 2% under Finance Act, 2004 and Secondary and Higher Education Cess @ 1% under Finance Act, 2007 be leviable once again on Excise duty calculated as above and exemption under Notfn. No. 23/2003-C.E., dated 31-3-2003 is not available because the notfn. grants exemption from Excise duty and not from the Cesses. The Adjudicating Authority also relied upon the decision of the Hon'ble Tribunal in Sarla Polyester case reported as 2008 (226) E.L.T. 238 (T). 3. The order came to be upheld by the Commr. (Appeals), hence this appeal. 4.& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or another law for the time being in force, on like goods produced or manufactured outside India and imported into India. Therefore, once Excise duty is computed in the manner laid down under Section 3 of CEA, 1944 read with Notification No. 23/2003-C.E., dated 31-3-2003, Cess under Section 93 of Finance (No. 2) Act, 2004 would be leviable. There is no second or third levy of Cess, as contended by the appellants. What was paid by the appellants was Cess on Customs duty in terms of Section 94 of the Finance (No. 2) Act, 2004, whereas, what is demanded is Cess on Excise duty in terms of Section 93 of Finance (No. 2) Act, 2004. Each time the duty of Customs or Central Excise is paid/payable, Cess would be payable. Besides, the issue is fully covered by Sarla Polyester case reported as 2008 (226) E.L.T. 238 (Tri. - Ahmd.), which was not considered by the Hon'ble Tribunal in Sarla Performance case supra. 7. We have considered the rival submissions. The issue for determination before us is whether Education Cess and Secondary and Higher Education Cess are leviable on the clearances made by a 100% EOU in DTA. To illustrate, the Appellant have calculated the duty payable on DTA clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in force. (3) The provisions of the Central Excise Act, 1944 (1 of 1944) and the rules made thereunder, including those relating to refunds and exemptions from duties and imposition of penalty shall, as far as may be, apply in relation to the levy and collection of the Education Cess on excisable goods as they apply in relation to the levy and collection of the duties of excise on such goods under the Central Excise Act, 1944 or the rules, as the case may be. 94. Education Cess on imported goods. - (1) The Education Cess levied under section 91, in the case of goods specified in the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), being goods imported into India, shall be a duty of customs (in this section referred to as the Education Cess on imported goods), at the rate of two per cent., calculated on the aggregate of duties of customs which are levied and collected by the Central Government in the Ministry of Finance (Department of Revenue), under section 12 of the Customs Act, 1962 (52 of 1962) and any sum chargeable on such goods under any other law for the time being in force, as an addition to, and in the same manner as, a duty of customs, but not incl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods manufactured or produced; (ii) in the case of goods specified in the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), being goods imported into India; and (iii) in the case of all services which are taxable services, shall be a tax (in this section referred to as the Education Cess on taxable services). Thus, Cess is leviable on import of goods under Section 94 of the Finance (No. 2) Act, 2004 and also on production or manufacture of goods under Sections 93 of the Finance (No. 2) Act, 2004. The contention, therefore, that the Cess, if demanded on DTA clearance, by 100% EOU would be a Cess on Cess as they had already paid Cess on the goods imported, is not tenable. It can be seen that levy of Cess is on the activity, i.e., either on import of goods or on manufacture or production of specified goods. The present case relates to levy of Cess under Section 93 of the F.A. (No. 2) Act, 2004 on production or manufacture of goods and clearance thereof in DTA whereas, the appellants had paid Cess under Section 94 leviable on the import of goods. 9. Since Section 3 of the Central Excise Act, 1944 (CEA, 1944) provides for the levy and col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Excise duty so far as 100% EOUs are concerned which would be the aggregate of the duties of Customs payable on import of like goods in India. Merely because the measure of duty is the aggregate of the duties of Customs, it does not mean that the nature of duty becomes Customs duty. It remains duty of Excise only. Therefore, for computation purposes, the aggregate of the duties of Customs plus cess payable under Section 94 of the Finance Act, 2004 is to be taken into consideration. The duties of Customs are specified under Customs Tariff Act, 1975 whereas Cess on the duties of Customs is levied under Section 94 of the Finance (No. 2) Act, 2004. Since the excise duty payable or DTA clearance is aggregate of duties of customs plus education cess payable on import of like goods, or the excise duty so calculated, education cess under Section 93 of Finance Act, 2004 would be attracted once again. 10. The appellants have also contended that the Notfn. No. 23/2003 - C.E., dated 31-3-2003 itself provides the manner of payment of duty in case of DTA clearances by 100% EOU, therefore, there was no need to deviate therefrom and demand Cess while the Cess was already paid on the du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proviso shall apply to the goods which are chargeable to "Nil" rate of duty 2 leviable under section 12 of the Customs Act, 1962 read with any other notification for the time being in force issued under sub-section (1) of section 25 of the said Customs Act. Illustration.- Assuming product X has the value Rs. 100 under section 14 of the Customs Act, 1962 and is chargeable to basic custom duty of 25% ad valorem, additional duty of 16% ad valorem and special additional duty of 4% ad valorem. The computation of duty required to be paid would be as follows : Basic Customs duty = Rs. 25/- Value for the purpose of calculation of additional duty = Rs. 100/- + Rs. 25/- Rs. 12.5/- Additional duty = l6% of Rs. 125/- = Rs. 20/- Value for the purpose of special additional duty if leviable = Rs. 100/- + Rs. 25/- + Rs. 20/- = Rs. 145/- special additional duty if leviable = 4% of Rs. 145/- Rs. = 5.8/- Total duty payable but for this exemption = Rs. 25/- Rs. 20/- + Rs. 5.80/- = Rs. 50.80/- 50% of aggregates of the duties of customs = 50% of Rs. 50.80/- = 25.40/- Duty required to be paid in accordance with this notification is Rs. 25.40/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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