2008 (3) TMI 72 - AT - Service Tax

Present appeal relates to the payment of education cess at the time of clearance in DTA - appellant s contention that as Customs education cess stand paid by them at the time of import of the goods, further confirmation of education cess at the time of DTA clearance is not in accordance with the law, is not acceptable - fact that the customs education cess stands paid, will not alter the position held that education cess is to be levied on all dues of excise, so assessee s appeal rejected

Summary

Issues:
Dispute over payment of education cess at the time of clearance of goods in DTA by a 100% EOU.

Analysis:
1. The appellant, a 100% EOU engaged in manufacturing textile yarns, cleared goods for export and in DTA on payment of excise duty equivalent to 50% of aggregate customs duties. The dispute arose regarding the payment of education cess at the time of DTA clearance. The appellant argued that since they paid customs education cess during import, further education cess at DTA clearance was not justified. They contended that being a 100% EOU, they cannot be made liable for duty exceeding what is specified under Section 3(i) proviso. The Assistant Commissioner's order demanding education cess beyond customs duty was challenged.

2. The appellate authority upheld the demand for education cess, citing Section 3 of the Central Excise Act, 1944, which mandates excise duty on goods produced by a 100% EOU to be equivalent to customs duties on imported goods. The duty includes education cess, payable at 2% on the aggregate of all excise duties. The authority referred to a Tribunal decision stating that though the duty is excise, its measure is customs duty. Education cess is to be paid at DTA clearance in addition to excise duty, as per Clause 83 of the 2004 Bill.

3. The Commissioner (Appeal) emphasized that education cess is to be levied on all excise duties, including special excise duty, in addition to any other duties. The duty paid by a 100% EOU for DTA clearances is considered excise duty under the statute, making it liable for education cess. The contention that education cess cannot be levied on duty determined under Section 3 proviso was dismissed, stating the law is clear on levying education cess on excise duties.

4. The Tribunal affirmed the appellate authority's decision, stating that education cess is to be levied on all excise dues, irrespective of customs education cess payment during import. The case laws cited by the appellant were deemed irrelevant to the present case. The appeal was rejected, upholding the demand for education cess at the time of DTA clearance by the 100% EOU.