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TMI Blog2024 (6) TMI 1173X X X X Extracts X X X X X X X X Extracts X X X X ..... he countervailing duty and basic customs duty without paying the same on the excise duty that was determined as payable. The period involved in the present dispute is from November 2011 to May 2012. 2. It is the case of the Revenue that in terms of section 3(B)(2) of the Central Excise Act, 1944 r/w Rule 17 of the CENVAT Credit Rules, 2002 education and secondary and higher education cess is to be calculated and paid on the Central Excise duty and the aggregate duty of central excise payable on the DTA clearances was required to be worked out in terms of Notification No. 23/2003 - CE dated 31.03.2003. The non-payment as indicated above prompted the issuance of show cause notice dated 02.12.2011 proposing to demand the differential duty wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We have gone through the order (supra) relied upon by the ld. Advocate of this Chennai Bench and the Bench, after having considered the decision of larger bench of the Tribunal in the case of Kumar Arch Tech Pvt. Ltd. Vs. CCE, Jaipur reported in 2013 (290) ELT 372 (Tri. LB) has held that the demand confirmed in the against the taxpayer therein was not called for and accordingly set aside the demand therein. Relevant observations are as under: "5. We find that the issue whether educational cess and secondary and higher education cess are chargeable on DTA clearance made by 100% EOU even if such cess were added while calculating the aggregate duties of customs payable under the Customs Act, 1962 or under any other law in force, has been an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... existing levies, obviously, would not include this cess. For this reason only, Sections 93 & 94 of Finance Act, 2004 and Sections 138 and 139 of Finance Act, 2007 while defining the measure of education cess and S&H cess in respect of excisable goods and imported goods respectively, specifically provide that the aggregate of duties of excise or aggregate of duties of customs levied by the Central Government in the Ministry of Finance (Deptt. of Revenue), on which this cess is to be levied as surcharge, would not include the education cess and S&H cess. Thus, the intention of the legislature was never to charge education cess on education cess. In fact this is not permissible from very mode of this levy as prescribed in Section 91 of the Fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iff Act, 1975 or any other law for the time being in force, this aggregate of duties of customs on which education cess under Section 93 of Finance Act, 2004 and S&H cess under Section 138 of Finance Act, 2007 is to be charged, would not include education cess and S&H cess under Section 94 of Finance Act, 2004 and Section 139 of Finance Act, 2007. In other words, the education cess and S&H cess would be chargeable only once under Section 93 of Finance Act, 2004 and Section 138 of Finance Act, 2007 on the sum of basic customs duty and Additional customs duty." 6. The order squarely covers the facts in issue in this case. In the light of the above judgment, judicial discipline requires that we abide with the same. We hence set aside the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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