2013 (8) TMI 5 - AT - Central Excise

Calculation of Education Cess on the excise duty chargeable by EOU for the goods cleared into DTA Held that - The Larger Bench, in the case of Kumar Arch Tech Pvt. Limited vs. CCE, Jaipur-II, as reported at - 2013 (4) TMI 482 - CESTAT NEW DELHI has specifically held in favour of the assessee and answered the reference accordingly and in the case in hand, the assessee has been following the very same procedure - Decision of the Larger Bench is binding on the Division Bench, thus, applicable in favor of assessee in the present case Decided in favor of Assessee.

Summary

Issues:
Calculation of Education Cess on excise duty chargeable for goods cleared by 100% EOU into DTA; Eligibility of exemption under Notification No. 23/2003-CE.

Analysis:

Calculation of Education Cess on excise duty chargeable for goods cleared by 100% EOU into DTA:
The appellant filed a stay petition seeking the waiver of pre-deposit of an amount and equivalent penalty imposed due to differences in Education Cess and Secondary and Higher Education Cess payable by the appellant as a 100% EOU clearing goods in DTA. The appellant's counsel argued that the issue of calculating Education Cess on excise duty for such goods was contentious and had been referred to the Larger Bench of the Tribunal. Referring to the case of Kumar Arch Tech Pvt. Limited vs. CCE, Jaipur-II, the counsel highlighted that the Larger Bench had ruled in favor of the assessee, making its decision binding on the Division Bench. The Tribunal acknowledged the settled nature of the issue by the Larger Bench, which favored the assessee's approach. Consequently, the Tribunal agreed with the appellant's case for the waiver of pre-deposit, as the confirmed amounts were related to this specific issue. Therefore, the application for waiver was allowed, and recovery stayed pending appeal disposal.

Eligibility of exemption under Notification No. 23/2003-CE:
The appellant's counsel also argued that there was no confirmed demand against the exemption issue raised by a show cause notice, thus questioning the necessity of waiving the pre-deposit for those amounts. However, the Tribunal's decision primarily focused on the Education Cess calculation issue settled by the Larger Bench, which formed the basis for granting the waiver. As a result, the Tribunal did not delve into the exemption eligibility issue under Notification No. 23/2003-CE, as the waiver was specifically related to the Education Cess calculation dispute. The Tribunal's decision to grant the waiver was based on the settled legal position established by the Larger Bench, emphasizing the binding nature of its decision on the Division Bench.

This detailed analysis of the judgment from the Appellate Tribunal CESTAT AHMEDABAD highlights the key issues involved, the arguments presented by both parties, and the Tribunal's decision based on the settled legal position established by the Larger Bench regarding the calculation of Education Cess for goods cleared by 100% EOU into DTA.