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TMI Blog2018 (8) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... ational Contingent Calamity Duty (NCCD), introduced under Section 136 of the Finance Act, 2001, alleged to be leviable on POY, falling under Chapter Heading No. 5402.42 of CETA, 1985, when the same was captively consumed. Consequently, demand notice was issued to the Respondent on 01.9.2008 for recovery of the duty of Rs. 19,10,807/- along with interest and penalty. On adjudication, the demand was confirmed with interest and penalty of Rs. 20,000/- imposed under Rule 25 of CER, 2002. Aggrieved by the said order, they filed an appeal before the Ld. Commissioner (Appeals), who inturn, allowed their appeal. Hence, the Revenue is in appeal. 3. The Ld. AR for the Revenue reiterated the grounds of appeal and submitted that the respondent are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt case as the observation relates to levy and collection of Education Cess and Higher Secondary Education Cess as a percentage of basic excise duty; the Hon'ble Apex court has held that once the basic excise duty is 'NIL', logically the Education Cess and Higher Secondary Education Cess becomes nil. 4. Ld. Consultant Shri P. P. Jadeja for the Respondent has submitted that similar issue has come up before this Tribunal, in their own case, vide order No. A/10635/2015 dated 21.05.2015 and A/10947/2015 dated 26.06.2015. It is his contention that after considering the principles of law settled in this regard by the earlier judgements of this Tribunal in the case of M/s Modern Petrofils vs. CCE-Vadodara-ii vide order No. A/2094/WZB/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue of Notification No. 67/1995-CE dated 16.03.1995, as amended. The said Notification is reproduced as below: Exemption to all capital goods and inputs if captively consumed within the factory of production. - Notification No. 67/95-C.E., dated 16-3-1995 In exercise of the powers conferred by sub-section (1) of section 5A of the Central Excises and Salt Act, 1944 (1 of 1944), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts - (i) capital goods as defined in CENVAT Credit Rules, 2002 manufactured in a factory and used within the factory of production; (ii) goods specified in column (1) of the Table hereto annexed (hereinafter referred to as 'inputs') manufactured in a f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te applicable as mentioned in the VIIth Schedule to the CETA, 1985, and being not specifically included/mentioned in the scope of the duties allowed as exempted under Notification No. 67/95-CE, accordingly, the said exemption cannot be allowed to NCCD. On the other hand, the respondent's contention is that even though NCCD is levied as a surcharge under Sec.136 of the relevant Finance Act, 2001 however, its levy and collection is in accordance with the procedure laid down for levy and collection of duty of excise, hence eligible to benefit of Notification No. 67/95-CE dated 16.03.1995. Further, it has been submitted by the Respondent that this issue has been considered in their own case by two earlier judgements of this Tribunal dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulated a percentage of the excise duty or service tax, when the basic excise duty or service tax is exempted, would not be applicable to NCCD, which is collected separately as per rates prescribed under VIIth Schedule to CETA, 1985 and not as a percentage of the Excise Duty. Their Lordships in SRD Nutrient's Case observed as: 21. Even otherwise, we are of the opinion that it is more rational to accept the aforesaid position as clarified by the Ministry of Finance in the aforesaid circulars. Education Cess is on excise duty. It means that those assessees who are required to pay excise duty have to shell out Education Cess as well. This Education Cess is introduced by Sections 91 to 93 of the Finance (No. 2) Act, 2004. As per Section 91 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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