2016 (10) TMI 829 - HC - Central Excise

Levy of education cess and secondary and higher education cess - powers of the central government - business of exploration, development and production of crude oil and natural gas - production sharing contract - production of crude oil - Scope of Section 91 read with Section 93 of the Finance Act, 2004 and Section 136 read with Section 138 of the Finance Act, 2007, being the cess as per Section 15(1) of the Oil Industries (Development) Act, 1974, is said to be not levied and collected by the Ministry of Finance (Department of Revenue)? - Held that - Pertinent to notice that under the Act of 1974, as per Section 16, the duty of excise levied shall be first credited to the consolidated fund of India and the Central Government may, if Parliament by appropriation made by law in this behalf, so provides, pay to the Board from time to time, from out of such proceeds, after deducting expenses of commercial and such sums of money as it may think fit for being utilised exclusively for the purpose of this Act. Under Section 16, a broad discretion is available with the Central Government for necessary allocation of excise. On the other hand, under the Sugar Cess Act, the entire duty shall mandatorily go to consolidated fund required to be maintained as per the Sugar Development Fund Act, 1982. Learned Tribunal without examining this aspect of the matter decided the appeal by applying the law laid down in the case of Commissioner v. Sahakari Khand Udyog Mandi Ltd., that is apparently erroneous. As per Section 93 and 138 of the Acts aforesaid, the cess is a duty of excise which is to be levied and collected by the Central Government in the Ministry of Finance under provisions of the Central Excise Act, 1944 or under any other law for time being in force. The scope of the provisions referred above is quite wide and that covers levy and collection of all excisable goods under provisions of the Central Excise Act, 1944 or even under any other law for time being in force. In light of this provision also we do not find any wrong in applying the cess in question upon the excise duty referred under Section 15(1) of the Act of 1974. No reason found to reason to escape the respondent from application of education/secondary and higher education cess under the Act of 2004 and the Act of 2007 respectively - Decided in favor of revenue.

Summary

Issues Involved:
1. Whether the Customs, Excise and Service Tax Appellate Tribunal was justified in concluding that the respondent is not liable to pay education cess and secondary and higher education cess.
2. Whether the oil cess levied under the Oil Industries (Development) Act, 1974 can be considered as excise duty for the purpose of levying education cess and secondary and higher education cess.
3. Whether the education cess and secondary and higher education cess can be levied on duties collected by the Ministry of Finance but levied by another ministry.

Issue-wise Detailed Analysis:

1. Justification of Tribunal's Conclusion:
The Tribunal set aside the order of the Commissioner of Central Excise (Appeals), concluding that education cess and secondary and higher education cess can only be levied on duties of excise levied by the Ministry of Finance, Department of Revenue. Since the oil cess is levied by the Ministry of Petroleum, it cannot be included for the purpose of education cess despite being collected by the Ministry of Finance.

2. Nature of Oil Cess under the Oil Industries (Development) Act, 1974:
The oil cess levied under Section 15(1) of the Oil Industries (Development) Act, 1974, is collected as excise duty. However, the Tribunal relied on the Gujarat High Court's judgment in the case of Commissioner v. Sahakari Khand Udyog Mandi Ltd., which dealt with the Sugar Cess Act, 1982. The Tribunal concluded that since the oil cess is not levied by the Ministry of Finance, it cannot be treated as excise duty for the purpose of education cess.

3. Levy of Education Cess and Secondary and Higher Education Cess:
The Tribunal's reliance on the Gujarat High Court's judgment was found to be erroneous. The provisions of the Oil Industries (Development) Act, 1974, differ from the Sugar Cess Act, 1982. The oil cess collected under the 1974 Act is not exclusively for that Act's purposes and is within the broad discretion of the Central Government. The education cess and secondary and higher education cess, as per Sections 91 and 93 of the Finance Act, 2004, and Sections 136 and 138 of the Finance Act, 2007, can be levied on duties of excise collected under any law in force, including the Oil Industries (Development) Act, 1974.

Conclusion:
The High Court concluded that the Tribunal erred in its judgment. The oil cess under the Oil Industries (Development) Act, 1974, should be considered for levying education cess and secondary and higher education cess. The Tribunal's order was set aside, and the Commissioner (Appeals)'s order was restored, confirming the levy of education cess and secondary and higher education cess on the oil cess. The writ petition for refund was dismissed as the Tribunal's order was set aside.