TMI Blog2007 (7) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... and education cess may be quashed. 2. The petitioner- company is engaged in manufacture of tractors. According to the petitioner- company no excise duty is leviable on tractors. Further according to the petitioner-company, as per the notification issued in respect of Uttranchal and Himachal Pradesh the industries situate in the areas specified in the said notification have been exempt from payment of excise duty and additional duty of excise leviable under the Central Excise Act, the Additional Duties of Excise (Goods of Special Importance) Act, 1957 and the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978. 3. The Parliament has enacted the Industries (Development and Regulation) Act, 1951 (for short: IDRA). Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or group of industries and where it does so, the Development council shall utilize the said proceeds:- (a) To promote scientific and industrial research with reference to the scheduled industry or group of scheduled industries in respect of which the Development council is established; (b) To promote improvements in design and quality with reference to the products of such industry or group of industries; (c) To provide for the training of technicians and labour in such industry or group of industries; (d) To meet such expenses in the exercise of its functions and its administrative expenses as may be prescribed." 4. Pursuant to the provisions of Section 9, the Ministry of Industry (Department of Heavy Industry) issued an order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actors as per Automobile Cess Rules. It is further contended by the respondents that the exemption only applies to the excise duty and not to the cess payable under the IDRA or Education cess leviable under the Finance Act. 8. There is no manner of doubt that under the IDRA, a cess has been imposed upon the tractors. The question which first arises is whether tractors fall within the definition of automobile and therefore, can the cess be recovered under the Automobile Cess Rules, 1984 or not? 9. The first Schedule to the IDRA classifies different goods under different headings. Headings 7 and 10 of the First Schedule are relevant and read as follows:- "7. Transportation (1) Aircraft (2) Ships and other vessels drawn by powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rently from other automobiles. Tractors have not been included in heading 7 nor are they impliedly or explicitly included in the definition of automobile in the Automobile Cess Rules which also specifically makes mention of heading 7. We are, therefore, of the opinion that the cess leviable on tractors cannot be recovered under the Automobile Cess Rules. 13. Though there is no manner of doubt that cess has been levied on tractors, the respondents have failed to point out to us that any machinery has been prescribed under law for recovery of the cess. Therefore, we have no other option but to hold that the cess leviable on tractors cannot be recovered till the rules are framed or executive instructions are issued for recovery and collect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the notification. The said notification only makes mention of the Central Excise Act, 1944, Additional Duties of Excise (Goods of Special Importance) Act, 1957 and the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978. This notification makes no reference to the IDRA or the Finance Act. Therefore, we are of the view that the petitioner is liable to pay the cess on tractors as well as education cess. 17. The contention of the petitioner that the Education cess is levied @ 2% of the aggregate of the duties and since the petitioner has been exempted from paying excise duty, this 2% cess cannot be calculated, is not tenable. The excise duty can always be calculated even if it is not collected and on this notional ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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