TMI Blog2016 (12) TMI 1851X X X X Extracts X X X X X X X X Extracts X X X X ..... 56370/2016-EX[SM] - Dated:- 23-12-2016 - Shri V. Padmanabhan, Member (Technical) Sh. Dharam Singh, AR for the Appellant None, for the Respondent ORDER The present appeal filed by Revenue is directed against the Order dated 19.1.2009 passed by the Commissioner (Appeals), Jaipur. The impugned order decides the same issue with reference to 43 manufactures of SS Cold Rolled Patta /Patti falling under Sub Heading No. 7219.90 of the Central Excise Tariff. All these manufacturers have opted for payment of Central Excise duty under the compound levy scheme formulated for this commodity issued under Rule 15 of the Central Excise Rules, 2002. The relevant Notification applicable during the period under dispute was notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se Tribunal has held as follows: Undisputedly, the compounded levy scheme was formulated under Rule 15 of the Central Excise Rule, 2001. The said Rule 15 read as under :- Special procedure for payment of duty. - (i) the Central Government may, by notification, specify the goods in respect of which an assessee shall have the option to pay the duty of excise on the basis of such factors as may be relevant to production of such goods and at such rate as may be notified for this purpose, subject to such limitations and conditions, including those relating to interest or penalty, as may be specified in such notification. (ii) The Central Government may also specify by notification the manner of making an application for ava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 28-6-2001, therefore, specifically refers to the duty of excise payable in terms of Section 3 of the said Act. The conjoint reading of Rule 15, Rule 2(e) of the said Rules and Section 3 of the said Act makes it abundantly clear that the scheme which can be introduced in terms of Rule 15 giving option to the manufacturer in that regard would be in relation to the duties payable in terms of Section 3 of the said Act. Section 3 specifically refers to the duties specified in first and second schedule to the Central Excise Tariff Act, 1985. 11 . The education cess has been levied in accordance with Section 93 of the Finance Act, 2004 whereas the higher education cess was levied under Section 138 of the Finance Act, 2007. The education c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving at the said finding the Tribunal had taken into consideration the various provisions of law of the said Act as well as of the Finance Acts and has held that the cess so imposed cannot be construed as forming part of the duty levied under Section 3 of the said Act. Obviously, therefore, education cess and higher education cess cannot be said to be part of the compounded levy determined under the compounded levy scheme in terms of Notification No. 34/2001-C.E., dated 28-6-2001 read with Rule 15 of the said Rules. 13 . Clause 3(1) of the said notification provides that a manufacturer whose application has been granted under paragraph 2 shall pay a sum calculated at the rate specified in the said notification, subject to the condi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n account of statutory provisions other than Rule 15 under which the scheme is formulated. Once Rule 2(e) of the said Rules restricts the scope of the term duty‟ to the liability which could be discharged in terms of Section 3 of the said Act and Section 3 refers to the first and second schedules of the Central Excise Tariff Act, 1985, the cess being imposed under independent statutory provisions comprised under Finance Acts, certainly, the liability flowing therefrom would not be part of the duty determined under the compounded levy scheme. The Rule 15 of the said Rules merely enables the Central Government to specify the goods in respect of which assessee can opt to pay the duty of excise on the basis of such factors as may be rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Finance Acts are included in the duty payable in terms of Section 3 of the said Act. In any case, when the provisions of law are very clear, the question of following the instructions of the Board which are apparently contrary to the provisions of law, cannot arise. Besides the letter dated 25-8-2008 even after noting those instructions proceeded to clarify with reference to Notification No. 34/2001-C.E., dated 28-6-2001 that the Notification No. 17/2007-C.E., dated 1-3-2007 which is similar to amended Notification No. 34/2001-C.E., dated 28-6-2001 covers only basic excise duty and does not include education cess or higher education cess and the same apparently is in consonance with the provisions of law. Being so, question of referrin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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