TMI Blog2017 (6) TMI 1093X X X X Extracts X X X X X X X X Extracts X X X X ..... that assessee is not liable to pay Education Cess third time, the issue is squarely covered in favor of the assessee by Larger Bench decision of this Tribunal - appeal dismissed - decided against Revenue. - C/1799/2010-SM - 20950/2017 - Dated:- 22-6-2017 - Shri S. S. Garg, Judicial Member Dr. J. Harish, AR For the Appellant None For the Respondent ORDER Per: S. S. Garg The present appeal is filed by Revenue directed against the impugned order dated 17.5.2010 passed by Commissioner (A) whereby the Commissioner (A) has set aside the Order-in-Original and allowed the appeal of the assessee with consequential relief of refund of ₹ 2,99,230/-. 2. Briefly the facts of the present case are that respondent-a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10.2009. The Assistant Commissioner vide OIO dated 11.1.2010 rejected the refund claim on the ground that the Board's Letter F. No.345/2/2004 TR dated 10.8.2004 clarified that if the goods are fully exempted from excise duty or customs duty are chargeable to NIL duty or are cleared without payment of duty under specified procedure such as clearance under bond, there is no collection of duty and no education cess would be leviable on such clearances. The Assistant Commissioner, Customs Division has brought out the work sheet of calculation of education cess and held that there was no excess payment once again filed an appeal before the Commissioner of Customs (Appeals). The Commissioner (A) vide Order-in-Appeal dated 17.5.2010 set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess on Education Cess - It is not permissible under Section 91 of Finance Act, 2004 and Section 136 of Finance Act, 2007 - When new tax is introduced as surcharge on existing levies, it can include only existing levies, not the new levy - If on sum of Basic Customs Duty and Additional Customs Duty, first cess on imported goods under Section 94 of Finance Act, 2004 and Section 139 of Finance Act, 2007 is charged as duty of Customs, and on the aggregate of duties of Customs, cess on excisable goods under Section 93 of Finance Act, 2004 and Section 138 of Finance Act, 2007 is charged, it would amount to charging Education Cess on Education Cess for which there is no sanction in law - It is subjecting tax twice over to same tax. Since in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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