TMI Blog2021 (6) TMI 746X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 35F. Once the credit of education cess and secondary education cess is specifically disallowed to be carried forward as transitional credit, they remain and retain their character as education cess and secondary education cess as cenvat credit as per Rule 3 of CCR, 2004. Since there is no finding on the merit by the learned Commissioner(Appeals), it will not be appropriate to decide the appeal on merits. The dismissal of the appeal for non-compliance of mandatory predeposit is not justified in law when the appellant has already paid the entire duty by debiting the cenvat credit account. The matter remanded back to the learned Commissioner(Appeals) for disposal of the appeal on merits after considering the various provisions cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Act, 1962 i.e. BCD, CVD and Customs Education Cess and Customs Secondary Higher Education Cess. The duty on such clearances should be paid in the manner prescribed in Rule 8 of Central Excise Rules, 2002. In case of failure to pay the amount of duty by due date, they are liable to pay the outstanding amount along with interest at the rate specified vide Notification under Section 11AA of the Act on the outstanding amount, for the period starting with the first day after due date till the date of actual payment of the outstanding amount. Whereas the appellant has paid duties of excise equivalent to BCD and CVD only on the excisable goods cleared in Domestic Tariff Area. Therefore, it appeared that they had short paid the duty equival ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s totaling to ₹ 3,76,308/- along with appropriate interest is recoverable under Section 11A and 11AA of the Central Excise Act, 1944. On these allegation, a show-cause notice was issued demanding Central Excise duty equivalent to education cess and Customs secondary education cess totaling to ₹ 3,76,308/- under Section 11A of the Central Excise Act along with interest. After following due process, the adjudicating authority confirmed the demand along with interest and also appropriated the interest of ₹ 62,016/- made vide challan No.000163/05.03.2018. Aggrieved by the said order, appellant filed appeal before the Commissioner(Appeals) but the Commissioner(Appeals) without going into the merits of the case, dismissed the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and secondary education cess is specifically disallowed to be carried forward as transitional credit, they remain and retain their character as education cess and secondary education cess and as cenvat credit as per Rule 3 of CCR, 2004 and can be utilized towards payment of impugned demand. He further submitted that both the authorities have failed to consider Section 140 of CGST Act, 2017 read with CCR, 2004. The learned counsel also relied upon the Circular of CBIC No.87/06/2019 GST dt. 02.01.2019 wherein the Board has clarified at para 5 that No transition of credit of cesses including cess collected as additional duty of customs would be allowed as per Explanation 3 of Section 140 of CGST Act, 2017 . He further submitted that in view o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t both the authorities have failed to consider the provisions provided in Section 140 as well as CBIC Circular dt. 02.01.2019. Once the credit of education cess and secondary education cess is specifically disallowed to be carried forward as transitional credit, they remain and retain their character as education cess and secondary education cess as cenvat credit as per Rule 3 of CCR, 2004. Since there is no finding on the merit by the learned Commissioner(Appeals), it will not be appropriate to decide the appeal on merits. The dismissal of the appeal for non-compliance of mandatory predeposit is not justified in law when the appellant has already paid the entire duty by debiting the cenvat credit account. In view of this, I am of the consi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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