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2015 (9) TMI 399 - BOMBAY HIGH COURT

2015 (9) TMI 399 - BOMBAY HIGH COURT - 2015 (322) E.L.T. 121 (Bom.) - Levy of Education-cess Exemption of duty under Notification No.45/02/Customs Respondent-assessee filed about 16 bills of entries and claimed benefit of Notification No.45/02/Customs On finalization of assessment, benefit of notification was extended to all bills of entries, exempting duties leviable subject to conditions that duties leviable were debited from relevant pass book under scheme known as DEPB scheme Educati .....

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eme are essentially to promote economic growth and in terms of new policy adopted by Government of India Education cess on imported goods shall be in addition to any other duties of customs chargeable on such goods under Customs Act, 1962 or any other law for the time being in force As per view taken by Gujarat high court in case of Gujarat Ambuja Exports Ltd. [2012 (7) TMI 679 - GUJARAT HIGH COURT] if customs duty is exempted in favour of assesse, then education cess on imported goods is al .....

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Appellate Tribunal. 2) The revenue appealed to the Tribunal against the order dated 6 December 2004, that was delivered by the Commissioner of Customs (Appeal) Mumbai. 3) This appeal has been admitted on the following substantial questions of law. (a) Whether the CESTAT is vested with powers or has jurisdiction to hold and declare that notification/circulars issued by the Board are inconsistent to legislature? (b) Whether Education Cess is leviable on imports made under DEPB Scheme as per Finan .....

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to all the bills of entries inter alia, exempting duties leviable subject to the conditions that the duties leviable were debited from the relevant pass book under a scheme known as DEPB scheme. The education cess at 2% on these duties was also debited from the duties of DEPB as per clause of the Finance Bill 2004. 6) The respondent protested against the debit of education cess by submitting various letters addressed to the Assistant Commissioner of Customs. They did not insist on issuance of sh .....

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on Notification dated 22 April 2002.The Tribunal has held as under:- We find that the DEPB Scheme operates under an exemption notification No.45/2002 Customs dated 22 April 2002. The said notification specifically exempts goods imported under DEPB scheme from basic, additional and special additional duties of customs. However, in terms of the conditions specified in the said notification, the exemption operates by allowing duty credit in the Duty Entitlement Pass Book on exports at the rate spec .....

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ties are exempted under DEPB scheme and the relevant notification. We find that the provisions in the said Finance Act specify the Education Cess as 2% of the customs duty levied and collected. In the case of imports under the DEPB scheme, which are fully exempt, the customs duty is nil. Hence, the education cess being 2% of the customs duty is also nil. If it were the intention of the Parliament to debit and credit education cess for imports under DEPB scheme, then the quantum of cess would hav .....

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January 2005 is contrary to the provisions of the Finance (NO.2) Act, 2004 read with Notification No.45/2002-Customs dated 22 April 2002.The revenue appeal is, therefore, rejected. 9) It is the correctness of this view of the Tribunal which is challenged before us. Mr. A.S. Rao appearing on behalf of the revenue submits that merely because there is a scheme and an exemption is granted that does not wipe out the duties. The customs duty is leviable and recoverable. In the light of the exemption .....

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xports Ltd. vs. Government of India 2013 (289) E.L..T. 273 (Guj.) and Commissioner of Customs vs. Pasupati Acrylon Ltd. 2013 (296) E.L.T. 182 (Guj.) He submits that the view taken by Gujarat High Court in Pasupati (supra) has been not interfered with by the Hon'ble Supreme Court and the revenue's appeal is dismissed on 8 May 2013. 11) The Tribunal's view is endorsed not only by the High Court of Gujarat but equally by the High Court of Madras in Commissioner of Customs, Tuticorin vs. .....

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