TMI Blog2018 (11) TMI 1374X X X X Extracts X X X X X X X X Extracts X X X X ..... ill be exigible to Cess. The Section 37B Order dt. 13.1.2006 clearly states that “Past instructions, Circulars and Orders on the issue may be considered as suitably modified” - there has been no instruction or order etc. issued earlier to 13.01.2006 to the effect that Tea Cess being duty of excise is required to be collected in respect of exports made by DTA units, such as the appellants. In any case, even if there had been any such instruction, that would obviously have got nullified by the said 37B order dated 13.01.2006. Tea Cess being collected as duty of excise as per Section 25 of the Tea Act, 1953, in view of Section 37B Order dt. 13.1.2006, cannot be collected in respect of exports under bond made by the appellants. The manner of preparation of tea and the process of manufacture of ‘instant tea powder’ cannot take away ‘instant tea” out of the definition of ‘tea’ under the Act, the Hon’ble Apex Court has held that the latter is also leviable for levy of cess under Section 25 of the said Act - post-Section 37B order, there should not be any doubt or confusion that cess under Section 25 of the Tea Act 1953 is not required to be paid in respect of exports under bond b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own that cess is collected as duty of excise. Section 25 (2) of the same Act further clarifies that duty of excise levied under sub-section 25 (1) is an addition to duty of excise leviable on tea under the Central Excise and Salt Act, 1944 or any other law for the time being in force. Hence by fiction of law, duty of excise is collected which is an additional duty of excise collected under the Central Excise Act, 1944. iv) For these reasons, when tea is manufactured and exported both Central Excise duty that may be otherwise leviable as also cess which is collected as duty of excise will be not be required to be paid in view of the provisions of Rule 19 (1) of the Central Excise Rules. v) The CBEC had issued amendment notification No.6/2004-CE (NT) dt. 10.08.2004 and substituted Explanation III in principle notification No.42/2001-CE (NT). As per the substituted Explanation III, duty was clarified to mean duty of excise collected, not only under Central Excise Act, 1944, but also, duties collected under seven other enactments have also been notified to be claimed as duty of excise . Hence cess which is collected as duty of excise under Tea Act, 1953 is also duty of excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts had filed Revision Application before the Ministry of Finance under Section 35EE of the Act 1944 praying that Cess is also a duty and exempted for payment of export clearances. However, in the order passed by the Joint Secretary to Govt of India, it was pointed that while cess is exempted for Export Oriented Units (EOUs) exporting tea, in the absence of any notification exempting Tea cess for the goods exported, other than EOUs, no merit was found in the revision application and it was rejected. Ld. A.R also draws our attention to decision of Hon ble Supreme Court in the case of CCE Cochin Vs TATA Tea Ltd. - 2002 (142) ELT 3 (SC) which had held that instant tea manufactured and exported by the unit is leviable for cess. 5. Heard both sides and have gone through the facts. 6.1 The issues that arises for consideration is whether the appellants on export of tea are required to discharge Tea Cess which is otherwise leviable under Section 25 of the Tea Act, 1953. The main grounds on which the lower authorities have held that cess is payable by the appellants on the exports are as under : Only tea produced and exported by EOUs are exempted from levy and collection of Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue) Central Board of Excise Customs, New Delhi In exercise of the power conferred under section 37B of the Central Excise Act, 1944, the Central Board of Excise and Customs having been satisfied that 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) As per rule 19 of the Central Excise Rules, 2002, any excisable goods may be exported without payment of duty under bond. Prior to coming into force of the Central Excise Rules, 2002, any excisable goods may be exported without payment of duty under bond. Prior to coming into force of the Central Excise Rules, 2002, rule 19 of the Central Excise Rules, 2001 and rule 13 of the Central Excise Rules, 1944, had similar provisions. (ii) Apart from the duties chargeable under 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following :- a. the Central Excise Act, 1944 (1 of 1944); b. the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957); c. the Additional Duties of Excise (Textile Textile Articles) Act, 1978 (40 of 1978); d. the Additional Duties of Excise as levied vide section 111 of the Finance Act, 1998 (21 of 1998) as amended by section 167 of the Finance Act, 2003 (32 of 2003); e. the Additional Duties of Excise as levied vide section 133 of the Finance Act, 1999 (27 of 1999) as amended by section 168 of the Finance Act, 2003 (32 of 2003) read with Notification No.28/2002-C.E., dated 13-5-2002 as amended by Notification No.62/2002-C.E.,. dated 31-12-2002; No.16/2003-C.E., dated 1-3-2003 and No.12/2004-C.E., dated 4-2-2004; f. the Special Additional Duties of Excise as levied vide section 147 of the Finance Act, 2002 (20 of 2002); 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); h. the Additional Duties of Excise as levied vide section 157 of the Fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said para (v) has only given illustrative examples of various types of duties of excise and cesses that have been made leviable by an Act of Parliament. The wordings in the sentence immediately preceding this list, namely Such duties inter alia, include the following (emphasis added) only serves to indicate that the list is not exhaustive and is only to meant to give examples of some of the duties of excise and cess collected as duties of excise that would not be required to be paid at the time of export. 6.7 Further in para (vi) of Section 37B Order it is categorically ordered that none of the duties leviable under any such Act of parliament is required to be paid on export of goods inter alia under Rule 19 of the Central Excise Rules, 2002. 6.8 Viewed in this light, we are of the considered opinion that Tea Cess being collected as duty of excise as per Section 25 of the Tea Act, 1953, in view of Section 37B Order dt. 13.1.2006, cannot be collected in respect of exports under bond made by the appellants. 6.9 Ld. A.R has relied upon the Supreme Court judgement in CCE Cochin Vs TATA Tea Ltd. - 2002 (142) ELT 3 (SC). We however find that the Hon ble Apex Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut the Tribunal did not take note of it. In support of his assertion, learned senior counsel has filed an affidavit of the counsel who had appeared for the assessee before the Tribunal. He further states that the Department has accepted the subsequent decision dated 21st July 1989 for the period February 1982 to December 1982. He submits that in view of the fact that the Department has accepted the subsequent decision dated 21st July 1989 in which it has been held that the rotors and stators in the form in which they are cleared from the appellant s factory are not finished goods and, therefore, not exigible to the levy of excise duty, the present appeal be accepted and the impugned order be set aside. 4. Learned senior counsel for the Department, after taking instructions, very fairly submits that the Department has accepted the decision dated 21st July 1989 and the same has attained finality. 5. Keeping in view the fact that the Department has accepted the decision dated 21st July 1989 pertaining to the assessee itself on the similar goods, we accept this appeal and set aside the order of the Tribunal and hold that the rotors and stators which were cleared by the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X
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