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2015 (2) TMI 641 - AT - Central ExciseLevy of cess - Whether education cess and secondary and higher education cess is leviable on the oil cess being collected from the appellant in terms of the provisions of Section 15 of the Oil Industries Development Act, 1974 - Held that - In terms of the provisions of Section 91 read with Section 93 of the Finance Act, 2004 and Section 136 read with Section 138 of the Finance Act, 2007, for the purpose of charging education cess and secondary and higher education cess, the excise duty would include only those cess levied as duty of excise, which are levied by the Ministry of Finance, Department of Revenue. Since the oil cess is levied by the Ministry of Petroleum, even though it is collected by the Ministry of Finance as excise duty, the same cannot be included in the duty of excise for the purpose of education cess. Same view has been taken by the Gujarat High Court in the case of Sahakari Khand Udyog Mandli Ltd. (2010 (3) TMI 718 - GUJARAT HIGH COURT). In view of this, the impugned order is not sustainable . The same is set aside. - Decided in favour of assessee.
Issues:
Whether education cess and secondary and higher education cess are leviable on the oil cess collected from the appellant. The issue in the present case was whether education cess and secondary and higher education cess were applicable to the oil cess collected from the appellant under Section 15 of the Oil Industries Development Act, 1974. The department contended that these cesses were leviable, leading to a demand of &8377; 21,80,957/- along with interest. The Addl. Commissioner's order confirming this demand was upheld by the Commissioner (Appeals), prompting the appellant to file an appeal against it. During the hearing, the appellant's counsel argued that as per the provisions of Section 91 and Section 93 of the Finance Act, 2004, and Section 136 and Section 138 of the Finance Act, 2007, education cess and secondary and higher education cess should only apply to duties of excise levied by the Ministry of Finance, Department of Revenue. Since the oil cess was imposed by the Ministry of Petroleum & Natural Gas, it should not be subject to these cesses. Reference was made to a Tribunal judgment and subsequent Gujarat High Court decision supporting this interpretation. On the other hand, the Departmental Representative defended the impugned order by supporting the Commissioner (Appeals)'s findings. After considering the arguments and reviewing the records, the Tribunal concluded that education cess and secondary and higher education cess should only be charged on excise duties levied by the Ministry of Finance, Department of Revenue. As the oil cess was imposed by the Ministry of Petroleum, it should not be included in the duty of excise for the purpose of education cess. Citing the Gujarat High Court's decision in a similar case, the Tribunal set aside the impugned order, ruling in favor of the appellant and allowing the appeal.
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