2023 (9) TMI 7 - AT - Central Excise

Levy of NCCD - Claim barred by time limitation or not - HELD THAT - The respondent filed an appeal before the Commissioner (Appeals) which appeal has been allowed in part by the impugned order in view of the decision of the Supreme Court in BAJAJ AUTO LIMITED VERSUS UNION OF INDIA OTHERS 2019 (3) TMI 1427 - SUPREME COURT where it was held that Once the excise duty is exempted, NCCD, levied as an excise duty cannot partake a different character and, thus, would be entitled to the benefit of the exemption notification. As the decision of the Commissioner (Appeals) is based solely on the decision rendered by the Supreme Court in Bajaj Auto, has been held to be per incuriam and the Supreme Court has held that simply because one kind of duty is exempted, other kinds of duties automatically fall cannot be accepted. Therefore, NCCD shall continue to be levied despite the Notification exempting the payment of excise duty. The impugned order dated November 15, 2019 passed by the Commissioner (Appeals), therefore, cannot be sustained and is set aside - appeal allowed.

Summary

Issues Involved:
1. Interpretation of National Calamity Contingent Duty (NCCD) levy on tobacco products during the Goods and Service Tax regime.
2. Claim for refund of NCCD paid by the respondent.
3. Applicability of Supreme Court judgments in determining NCCD exemption.

Summary:
Issue 1:
The case involved a dispute regarding the levy of National Calamity Contingent Duty (NCCD) on tobacco products under the Goods and Service Tax regime. The Commissioner (Appeals) held that NCCD was exempted on tobacco products based on a Notification and Supreme Court judgments.

Issue 2:
The respondent initially paid NCCD but later claimed a refund after a Supreme Court judgment. The refund claim was partially allowed by the Commissioner (Appeals) based on the decision in Bajaj Auto case.

Issue 3:
The Department argued that a subsequent Supreme Court decision in M/s. Unicorn Industries case held that NCCD would be leviable under the GST regime. The Supreme Court clarified that simply because one type of duty is exempted, other duties do not automatically fall under the exemption.

In conclusion, the Tribunal set aside the Commissioner (Appeals) order as it solely relied on the Bajaj Auto judgment, which was deemed per incuriam. The Tribunal held that NCCD would continue to be levied despite the exemption notification, thereby allowing the appeal.