2016 (2) TMI 593 - AT - Central Excise

Education cess levy - Held that - Once the measure of customs duty equivalent to Central Excise leviable on the like goods has been worked out, the question of levying Education cess separately in respect of clearance by 100% EOU to DTA does not arise. See Commissioner Versus Meghmani Dyes & Intermediates Ltd. 2014 (11) TMI 615 - Supreme Court of India

Summary

Issues:
- Violation of principles of natural justice in passing the order
- Applicability of Central Excise duty rates to goods produced in Export Oriented Units (EOUs)
- Payment of Education Cess and Secondary and Higher Education Cess on excisable goods
- Treatment of goods cleared from EOU to Domestic Tariff Area (DTA) in par with imported products
- Interpretation of provisions related to Education Cess and Customs duty
- Precedent set by the High Court and Tribunal regarding Education Cess liability for EOUs

Analysis:
The appeal involved various issues, starting with the contention of the respondent company that the order passed by the Commissioner of Central Excise violated the principles of natural justice as they were not granted a personal hearing. The company argued that as per the proviso to Section 3(1) of the Central Excise Act, the rates of Central Excise duty are not applicable to goods produced in a 100% EOU and brought to any place in India. They further emphasized that Education Cess and Secondary and Higher Education Cess are payable on the aggregate of duties of excise on all goods produced in India.

Regarding goods cleared from EOU to DTA, the company asserted that these should be treated similarly to imported products, and the question of charging Education Cess again does not arise. They highlighted the inclusion of Education Cess in the calculation of Countervailing Duty (CVD) for imported goods, and argued that the payment of Education Cess again on the total duty amount is not warranted.

The company also referred to Chapter 22 of CBEC's Custom Manual, which states that the measure of excise duty on goods manufactured in EOUs is calculated in the same manner as for imported goods. They cited a High Court decision that set aside a Tribunal order holding EOUs liable to pay Education Cess, supporting their stance on the issue.

The Tribunal, after considering submissions from both sides, upheld the appeal of the assessee company. The revenue, dissatisfied with this decision, filed an appeal before the Tribunal, arguing that Education Cess should be levied separately in respect of clearances by 100% EOUs to DTA. However, the Tribunal dismissed the revenue's appeal, citing previous decisions and the finality of the matter following a Supreme Court ruling related to a similar case. The Tribunal's decision was based on the interpretation of provisions and the precedent set by higher courts and tribunals, ultimately leading to the dismissal of the revenue's appeal.