TMI Blog2013 (7) TMI 435X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Ltd.- [2007 (5) TMI 464 - CESTAT, BANGALORE] will be applicable – Appeal allowed – Decided in favor of Assessee. - E/2086-2087/2005 - M/1008-1009/WZB/AHD/2009 - Dated:- 14-3-2013 - Archana Wadhwa And B S V Murthy, JJ. For the Appellant : Shri S Suriyanarayanan, Adv. For the Respondent : Shri Rajendra Nagar, SDR. Per: B S V Murthy: The appellant is engaged in manufacture of embroidery fabrics and was working under Compounded Levy Scheme and was making payment of duty in terms of Notification No.33/2001, dt.28.06.01, according to which they were required to pay the duty at Rs.45/- per shift, which was fixed based on the meter length of the machine as required under the notification. The appellants are in appeal against the decision of the lower authority that the appellant is liable to pay 15% of the Excise duty payable towards AED (T TA). 2. Shri S. Suriyanarayanan, learned advocate on behalf of the appellant submitted that the amount of duty fixed under Compounded Levy Scheme Notification No.33/01-CE, dt.28.6.01 is total amount of duty payable and therefore it includes all types of Excise duties. Therefore, the decision of the lower authority that they are li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, the same. (Pronounced in Court on ..................................) Per: Archana Wadhwa: After having gone through the order proposed by the learned Brother, I proceed to record a separate order. As already formulated by learned brother, the only legal issue involved in the present appeal is as to whether the appellants are required to pay 15% of Excise Duty payable towards AED (T TA). 2. Admittedly, the appellants are working under a scheme commonly known as Compounded Levy Scheme, which is governed by the Notification No. 33/2001. As per the said scheme, the manufacturer of Embroidery Fabrics are required to pay "Duty of Excise" on the basis of per meter length of machine per shift, at the fixed rate of duty of Rs. 45 per meter length of machine. The question which arises is, as to whether such discharge of duty of excise at a fixed rate of Rs.45/- per meter length of the machine per shift, would take into its ambit the payment required to be made under the Additional Duties of Excise (Textile and Textile articles) Act 1978. 3. For better appreciation, relevant provision of the said Act is being reproduced below:- "3. Levy and collection of additional duties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... :- g) The National Calamity Contingent duty leviable under Section 136 of the Finance Act, 2001 (14 of 2001), as amended by Section 169 of the Finance Act, 2003 (32 of 2003) which was amended by Section 3 of the Finance Act, 2004 (13 of 2004). From the Section 129 of the Finance Act, 2001 and also from the above Circular issued by the CBEC, it is very clear that Exemption Notification 108/1995 is applicable also to NCCD. The learned advocate further brought to our notice the decision of this Tribunal in the case of Gokak Mills vs. CCE Bangalore, 2001 (043) RLT 0459 (CESTAT- Bang.) =2001 (02) LCX0058 Eq 2001 (129) ELT 0523 (Tri.-Bang.), wherein it was held while interpreting Notification No. 214/86 Central Excise that the said Notification issued under Rule 8(1) of Central Excise Rules exempts only basic excise duty and does not cover additional duty of Excise leviable under Additional Duties of Excise (Goods of Special importance) Act, 1957. The above was challenged in the Apex Court and the Apex Court allowed the appeal reversing the Tribunal's decision. In these circumstances, the impugned order cannot be sustained. Hence, we allow the appeal with consequential relief." 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant is required to pay additional duty in terms of Additional Excise Duty (T TA). (v) Whether the appeal is required to be rejected as held by Member (Technical) or the same is required to be allowed as held by Member (Judicial). Pronounced in Court on 24.9.2010 ORDER NO.A/10499-10500/WZB/AHD/2013 Per: M V Ravindran: This difference of opinion is placed before me as per the order of the Hon'ble President to resolve the following differences. i) Whether the discharge of Central Excise duty at the rate of 45% per L. Meter of the machine per shift in terms of the Notification No.33/2001-CE would take it into ambit the payment required to be made additional duty of excise (Textile and Textile Articles) Act, 1978. ii) Whether the Tribunal's decision in the case of Toyota Kirloskar Motor Pvt. Ltd. Vs. CCE Bangalore - 2007 (05) LCX 0303 covers the disputed issue in favour of the appellant. iii) Whether the Tribunal's decision in the case of Gokak Mills Vs. CCE Bangalore - 2001 (043) RLT 0459, which stands reversed by the Apex Court would cover the disputed issue or not. iv) Whether the appellant is required to pay additional duty in terms of addi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the manner it is described then they are required to pay duty of tariff rate to the first Schedule to the Central Excise Tariff Act, 1985 which would indicate that notification only exempts basic excise duty. It also is his submission that even as per Section 3 of the AED (T TA) duty of excise referred to in the said specified goods. He would submit that the judgment of Tribunal in the case of Toyota Kirloskar Motor Pvt. Ltd. does not cover the issue as in that case, the issue was only of exemption from NCCD under Notification No.108/95-CE. It is also his submission that the decision of the Hon'ble High Court of Himachal Pradesh in the case of Indo Farm Tractors Motors Ltd. - 2008 (222) ELT 184 (H.P.) will cover the issue as Hon'ble High Court has held that exemption from excise duty cannot be extended to payment of cess provided under industries (Development and Regulation) Act, 1951 and Education Cess leviable under Finance Act, 2004 can be calculated and collected as per law. It is his submission that Hon'ble High Supreme Court has approved this decision. He would also refer to various other decisions which are as follows: 1. Jindal Drugs Ltd. - 2011 (267) ELT 653 (Tri.- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at it is necessary and expedient so to do for the purpose of uniformity with respect to levy of duties of excise on goods exported under bond under rule 13 of the Central Excise Rules, 1944, rule 19 of the Central Excise Rules, 2001 and rule 19 of the Central Excise Rules, 2002, issues following orders, instructions and directions :- (i) ................. (ii) Apart from the duties chargeable under the Central Excise Act, 1944, certain other duties of excise are chargeable under different Acts of Parliament. The relevant Acts explicitly stipulate that the provisions of the Central Excise Act and the rules made thereunder, including those relating to refunds and exemptions from duties, shall, as far as may be, apply in relation to the levy and collection of such other duties of excise as they apply in relation to the levy and collection of the duties of excise leviable under that Act or those rules, as the case may be. (iii) ............... (iv) .............. (v) Objections over non-payment/non-collection of some of the said duties, such as Additional Duty of Excise (AED) and Special Additional Excise Duly (SAED) on Motor Spirit (MS) and High Speed Diesel o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2005 (18 of 2005); k. any special excise duty collected under a Finance Act. (vi) Accordingly, none of the duties leviable under any such Act of Parliament is required to be paid on export of goods under bond under rule 19 of the Central Excise Rules, 2002, rule 19 of the Central Excise Rules, 2001 and rule 13 of the Central Excise Rules, 1944." 8. It can be seen from the above reproduced circular issued under Section 37B, Central Board of Excise Customs has specifically stated that none of the duties chargeable under any Act or Parliament which provides that in relation to levy and collection of such duty, the provisions of Central Excise Act in the Rules made there under, shall, as far as may be, apply was/is payable under export of goods under bond. I am conscious of the fact that the said circular is issued for the specific reference raised from the trade as well as from the lower formation, as to export of the goods under bond, whether other duties are applicable to be paid by the assessee or not, but the understanding of the issue of the Board seems to be that any duty which is payable under the special Act of the Parliament and needs to be collected as per the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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