2023 (3) TMI 1426 - AT - Central Excise

100% EOU - Wrong calculation of duty payable by them while discharging duty at the time of clearance of goods to DTA - applicability of N/N. 01/2011-C.E. dated 01.03.2011 - Scope of SCN. According to department as there is no specific mention that Notification No. 01/2011 applies to EOU the appellant is not eligible for the benefit and has thus short paid CVD portion of the duty for clearances of goods to DTA. HELD THAT - On base perusal of the Order-in-Original it is found that there are no merits in the argument of the Learned Counsel for the assessee that the Adjudicating Authority has travelled beyond the scope of the Show Cause Notice. In the Show Cause Notice the allegation is that the assessee is not eligible to avail benefit of the Notification No. 01/2011-C.E. dated 01.03.2011. In the Show Cause Notice it is stated that this Notification is not meant for EOU as there is no specific exemption provided as required under proviso to Section 5A (1) of the Act. Surprisingly the Adjudicating Authority has decided to quantify the demand of duty as per Notification No. 02/2011 dated 01.03.2011. The concessional rate of duty as per Notification 01/2011-C.E. is 1% whereas the concessional rate of duty as per Notification No. 02/2011-C.E. is 5%. There is absolutely no whisper in the Show Cause Notice about Notification No.02/2011. The Department cannot then quantify and confirm the demand as per Notification No. 02/2011-C.E at a later stage. This finding is indeed beyond the scope of Show Cause Notice. For this reason itself the Order-in-Original is vitiated and the demand raised therein cannot sustain. The demand confirmed by denying the benefit of Notification No.01/2011 and by applying Notification No. 02/2011 is not justified and requires to be set aside - The issue is answered in favour of assessee and against Revenue. Cess included while calculating the demand of duty confirmed by the department - HELD THAT - The issue is already settled in favour of the assessee by the decision of the Larger Bench of the Tribunal in the case of KUMAR ARCH TECH PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE JAIPUR-II 2013 (4) TMI 482 - CESTAT NEW DELHI where it was held that 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 - The ratio laid in this case applies and therefore this issue is also held in favour of assessee and against the Revenue. The impugned order is set aside - Appeal of assessee allowed.

Summary

Issues Involved:
1. Eligibility of the assessee to avail the benefit of Notification No. 01/2011-C.E. dated 01.03.2011.
2. Calculation of Cess in the duty demand.

Summary:

Issue 1: Eligibility of Notification No. 01/2011-C.E.

The primary issue is whether the assessee, a 100% Export Oriented Unit (EOU), can avail the benefit of Notification No. 01/2011-C.E. dated 01.03.2011 while discharging duty for Domestic Tariff Area (DTA) clearances. The Department argued that the Notification does not specifically mention its applicability to EOUs, as required under Section 5A (1) of the Central Excise Act, 1944, leading to the short payment of CVD by the assessee.

The adjudicating authority, however, confirmed the duty demand based on Notification No. 02/2011-C.E., which prescribes a duty rate of 5%, instead of 1% under Notification No. 01/2011-C.E. The Tribunal found that the adjudicating authority had traveled beyond the scope of the Show Cause Notice, which only alleged ineligibility under Notification No. 01/2011-C.E., without mentioning Notification No. 02/2011-C.E. This was deemed a significant procedural error.

The Tribunal also referred to the Supreme Court's judgment in SRF Ltd Vs Commissioner of Customs, Chennai, which held that if no CENVAT credit is admissible, the condition of not availing such credit is inherently fulfilled. Thus, the assessee was entitled to the benefit of Notification No. 01/2011-C.E. The Tribunal concluded that the demand raised under Notification No. 02/2011-C.E. was unjustified and set it aside.

Issue 2: Calculation of Cess

The second issue concerned the inclusion of Cess multiple times in the duty calculation. The assessee argued that Education Cess and Secondary and Higher Education Cess should not be charged again on the Central Excise duty as they were already included in the aggregate of Customs duties. The Tribunal agreed, referencing the decision in Kumar Arch Tech Pvt. Ltd. Vs Commissioner of Central Excise, Jaipur-II, which settled this issue in favor of the assessee.

Conclusion:

The Tribunal set aside the impugned order, allowed the assessee's appeal, dismissed the Department's appeal, and disposed of the cross-objection accordingly. The judgment was pronounced in open court on 28.03.2023.