2014 (8) TMI 254 - HC - Central Excise

DTA clearance by 100% EOU - Levy of Eduction cess (for the third time) on the aggregate of the duties of the customs - whether a Tribunal is justified in holding that the education cess is not leviable under Section 93 (1) of the Finance Act, 2004 upon the 100% EOU in clearance of DTA? - Notification No. 23/03 CE dated 31.03.2003 ignored by Tribunal - Maintainability of appeal - Held that - While passing the impugned judgement and order, the learned tribunal has relied upon the decision of the tribunal in the case of Sarla Performance Fibers Ltd. Versus CCE, Vapi, reported in (2010 (2) TMI 335 - CESTAT, AHMEDABAD). It is reported that against the aforesaid order passed by the learned tribunal in the case of Sarla Performance Fibers Ltd. (supra), the department preferred Tax Appeal 2013 (4) TMI 481 - GUJARAT HIGH COURT , the Division Bench of this Court has held that against the order passed by the learned tribunal in the case of Sarla Performance Fibers Ltd. (supra), appeal would not be maintainable before this Court and the appeal would be maintainable before the Hon ble Supreme Court - all these appeals are not required to be entertained and are required to be returned to the appellant to prefer appeals before appropriate Court and/or the Hon ble Supreme Court to challenge the impugned order passed by the learned tribunal before the Hon ble Supreme Court, if permissible under the law. Under the circumstances, all these appeals are not entertained and are disposed of - Decided against Revenue.

Summary

Issues:
- Appeal against the order of the Customs, Excise and Service Tax Appellate Tribunal
- Substantial questions of law regarding Education Cess & Secondary Education Cess
- Interpretation of the notification No.23/03 CE dated 31/3/2003
- Jurisdiction of the High Court versus the Supreme Court

Analysis:
The appeal was filed against the order of the Customs, Excise and Service Tax Appellate Tribunal, challenging the decision passed in Appeal Nos.E-10634 to 10636 of 2013. The appellant raised substantial questions of law regarding the Tribunal's decision on the Education Cess & Secondary Education Cess applicable to 100% EOU in DTA clearances. The Tribunal's interpretation of the proviso to Section 3(1) of the Central Excise Act, 1944, and Section 93(1) of the Finance Act, 2004, was also questioned. Additionally, the Tribunal's treatment of notification No.23/03 CE dated 31/3/2003 as subordinate legislation was disputed.

Upon hearing the arguments and reviewing the impugned judgment, the Court noted that the Tribunal relied on a previous decision in the case of Sarla Performance Fibers Ltd. In that case, it was determined that manufacturers were not required to pay education cess again on customs duty and CVD. The Division Bench of the Court had held that such decisions fall under "the order determining a question having relation to the rate of duty of excise." Consequently, the Court concluded that the appeals were not maintainable before them and should be pursued before the Supreme Court.

Based on the Division Bench's decision, all the appeals were dismissed, and the appellants were directed to approach the appropriate Court or the Supreme Court to challenge the Tribunal's order. The Court emphasized that the decisions regarding the Education Cess issue had significant implications on the excise duty rates applicable to manufacturers in DTA clearances from EOU Units. Therefore, the appeals were disposed of, and the appellant was instructed to present the appeals before the suitable judicial authority in accordance with the Central Excise Act.