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TMI Blog2023 (3) TMI 946X X X X Extracts X X X X X X X X Extracts X X X X ..... espect of the same appellant in appeal No. E/52864 of 2018, which was disposed of by final order No. A/50793/2019 - EX (DB) dated 24.06.2019. It was held in the final order that the appellant was not entitled to Cenvat credit on the clean energy cess paid by it and accordingly the appeal was dismissed. 4. Learned counsel for the appellant fairly submits that although the appellant had appealed against the above order, it has not been stayed or over-ruled by a higher judicial forum. We find that the aforesaid final order was reported as ACC Ltd. versus Commissioner of C.G.S.T. & C.E. [2019 (31) G.S.T.L. 103 (Tri. - Del.)] Paragraph 6 to 10 of this order are reproduced below :- "6. After hearing both the parties and perusing the record of the appeal as well as the referred case laws, we are of the opinion as follows : 6.1 In the impugned appeal, the substantial question of law to be adjudicated is as follows : 6.1.1 Whether the appellant is entitled for Cenvat credit on the clean energy cess levied on coal, peat and lignite vide Finance Act, 2010. 6.1.2 For the purpose, it becomes necessary to first adjudicate as to whether the clean energy cess qualifies to be called as exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a. (v) Shall be utilised by Central Government for the purposes as mentioned in sub-section (3)/Clause (4) above. (vi) The cess shall be in addition to any cess or duty leviable on the goods specified in 10th Schedule. (vii) It shall be for the purposes of Union and proceeds thereof shall not be distributed among the States. (viii) Provisions of Central Excise Act, 1944 shall be applicable as far as levy of exemption from duty, refund, offences and penalties are concerned, however with such modifications and alterations as may be deemed necessary. 6.2 Apparent from these clauses is the fact that clean energy cess is nomenclated as duty of Excise and the provisions of Central Excise Act, 1944 are made applicable in relation to levy/exemption, etc. thereof. But whether the cess is actually in the form of excise duty or tax or it is merely a fee, the question is still to be adjudicated for deciding the above mentioned substantial question of law. For the purpose, we refer to the following case laws : "17. The Constitution Bench of the Apex Court in the case of Kewal Krishna Puri & another v. State of Punjab & another reported in (1980) 1 SCC. 416 in which it was held, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able from a tax and is described as a fee. Tax recovered by public authority invariably goes into the consolidated fund which ultimately is utilised for all public purposes, whereas a cess levied by way of Fee is not intended to be, and does not become, a part of the consolidated fund. It is earmarked and set apart for the purpose of services for which it is levied. It was further held that, "It is true that when the Legislature levies a fee for rendering specific services to a specified area or to a specified class of persons or trade or business, in the last analysis such services may indirectly form part of services to the public in general. If the special service rendered is distinctly and primarily meant for the benefit of a specified class or area the fact that in benefiting the specified class or area the State as a whole may ultimately and indirectly be benefited would not detract from the character of the levy as a fee. Where, however, the specific service is indistinguishable from public service, and in essence is directly a part of it, different considerations may arise. In such a case it is necessary to enquire, what, is the primary object of the levy and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quid pro quo for the services rendered. However, correlationship between the levy and the services rendered (sic or) expected is one of general character and not of mathematical exactitude. All that is necessary is that there should be a "reasonable relationship" between the levy of the Fee and the services rendered." 21. From the aforesaid judgments it is clear that the traditional view is that there must be actual quid pro quo for a fee, has undergone a sea change in the recent years. The tax recovered by a public authority invariably goes into the Consolidated Fund, which ultimately is utilized for all public purposes. Whereas, a cess levied by way of fee is not intended to be, and does not become, a part of the Consolidated Fund. It is earmarked and set apart for the purpose of services for which it is levied." 6.3 In accordance of Articles 266 and 270 of the Constitution of India it becomes clear "26. Any cess levied and collected in order to constitute a fee after such collection should go into a special fund earmarked for carrying out the purpose of the Act. The said fund so set apart should be appropriated specifically for the performance of the specified purpose and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise Tariff Act or the Second Schedule thereto. In addition to other additional duties, as mentioned in Clause (iii) to (vii) as discussed. CEC does not fall in any of those sub-clauses. Further, the Notification No. 26/2010-C.E., dated 29-6-2010 has incorporated a proviso in Rule 3, CCR, 2004 which reads as follows : "Provided also that the Cenvat credit of any duty specified in sub-rule (1) shall not be utilised for payment of clean energy cess leviable under Section 83 of the Finance Act, 2010." It becomes clear that CEC was to be paid in cash corroborating the intention of the legislation that it was meant to be used for providing a specific service by the Central Government to a specific sector. 10. In view of entire above discussion, we answer the substantial question of law herein in negative holding that the clean energy cess being actually in the nature of fee and not tax/excise duty that the appellant is not entitled for availing Cenvat credit thereupon. We therefore, do not find any infirmity in the Order under challenge. The Order stands confirmed. Appeal stands dismissed. Miscellaneous application stands disposed of ". 5. As the issue involved in this appeal is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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