2018 (5) TMI 619 - AT - Customs

Demand of education cess - There is no issuance of SCN - Held that - The provisions of Finance Act, (2) 2004 relating to levy of education cess on excisable goods provides that the provisions of Central Excise Act, 1944 and the rules made thereunder, would be applicable for any dispute arising on levy and collection of education cess - the lower authorities should have issued a show cause notice to appellant before proceeding ahead in the matter. The appeal is disposed of by way of remand to the Adjudicating Authority to reconsider the issue afresh - appeal allowed by way of remand.

Summary

Issues:
1. Lack of issuance of show cause notice before confirming demand of education cess for a specific period.

Analysis:
The appeal in this case was directed against Order-in-Appeal No. 43/2008 V CH dated 24.12.2008. The appellant, who was a 100% EOU, argued that the Adjudicating Authority confirmed the demand of education cess for the period March 2005 to February 2006 without issuing any show cause notice. The Tribunal observed that the Adjudicating Authority proceeded with the confirmation of education cess based on a letter from the appellant contesting the demand, without providing a show cause notice. The Tribunal noted that the provisions of the Finance Act, 2004, regarding the levy of education cess on excisable goods, require the application of the Central Excise Act, 1944, and its rules for dispute resolution. The Tribunal emphasized that the lower authorities should have issued a show cause notice before proceeding further. It cited the Apex Court's decision in the case of Metal Forgings and the judgment of the High Court of Judicature for Andhra Pradesh in the case of Aurobindo Pharma Pvt. Ltd., to support the mandatory requirement of a show cause notice for raising a demand.

The Tribunal set aside the impugned order and remanded the appeal to the Adjudicating Authority for reconsideration. The Tribunal directed the Adjudicating Authority to follow the due process of law, issue a show cause notice, and address all points raised by the appellant before making a fresh decision. The appeal was disposed of by way of remand to the Adjudicating Authority, emphasizing the importance of adhering to the procedural requirements and ensuring a fair opportunity for the appellant to present their case.

In conclusion, the Tribunal's decision highlighted the significance of procedural fairness in tax matters, specifically emphasizing the necessity of issuing a show cause notice before confirming a demand. The judgment underscored the legal precedent set by higher courts regarding the mandatory requirement of a show cause notice for raising demands, ensuring that the principles of natural justice are upheld in administrative proceedings related to tax disputes.