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2016 (10) TMI 340 - AT - Central Excise100% EOU - demand of Education Cess and Secondary and Higher Education Cess - DTA clearances - Whether education cess and S&H cess are chargeable on DTA clearance made by 100% EOU even if such cesses were added while calculating the aggregate duties of customs payable under the Customs Act or any other law in force at the time imported or like goods? - Held that - the decision in the case of KUMAR ARCH TECH PVT LTD Versus COMMISSIONER OF CENTRAL EXCISE, JAIPUR-II 2013 (4) TMI 482 - CESTAT NEW DELHI apply where it was held by the Larger Bench after going through the provisions of Section 91, 93 & 94 of the Finance Act, 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. Education Cess and Secondary and Higher Education Cess not to be recovered from the 100% EOU for the DTA clearance effect by them - appeal allowed - decided in favor of appellant.
Issues:
Demand of Education Cess and Secondary and Higher Education Cess on DTA clearances by a 100% export-oriented unit. Analysis: The appeal was against Order-in-Appeal No. PII/MMD/298/2012 dated 19.12.2012. The issue revolved around the demand of Education Cess and Secondary and Higher Education Cess for DTA clearances made by the appellant between January 2007 to December 2011. The appellant, a 100% export-oriented unit, contested the demand. The counsel highlighted that a similar issue had been referred to the Larger Bench previously, and in the case of Kumar Arch Tech.Pvt. Ltd. 2003 (290) ELT 372, the Larger Bench ruled in favor of the assessee. Following this decision, subsequent orders by the Commissioner (Appeals) for later periods set aside the Order-in-Original. The Departmental Representative reiterated the findings of the lower authorities. The issue was whether Education Cess and Secondary and Higher Education Cess were chargeable on DTA clearances by a 100% EOU, even if these cesses were included in the calculation of aggregate duties payable under the Customs Act or any other applicable law. The Larger Bench, after examining Sections 91, 93, and 94 of the Finance Act, concluded that these cesses should not be recovered from 100% EOUs for DTA clearances. Given that the decision of the Larger Bench directly addressed the issue at hand, the Tribunal held that the impugned order should be set aside. Consequently, the impugned order was set aside, and the appeal was allowed. The operative part of the decision was pronounced in court.
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