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TMI Blog2010 (6) TMI 410X X X X Extracts X X X X X X X X Extracts X X X X ..... Entry was assessed and Customs duty of Rs. 2,42,708.40 and Education Cess @ 2% of the Customs duty amounting to Rs. 4854.17 was debited in DEPB No. 3410014206, dated 29-8-05. 2. Being aggrieved by the Department's action of debiting Education Cess in the DEPB, the appellant has filed appeal before Commissioner (Appeals) on the grounds that :- (i) For imports under DEPB, as per Notification No. 45/2002-Cus., dated 22-4-02 and No. 89/2005-Cus., dated 4-10-05, the Basic Duty and Additional Duty are exempted subject to condition that the duties leviable on the goods are debited from DEPB. (ii) The Ministry of Finance vide D.O.F. No. 334/3/2004-TRU., dt. 8-7-04 has clarified that where cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y amounts is a matter of procedure and convenience, but the notification basically provides full exemption from customs duty. Our view is supported by earlier decision of the Tribunal in Essar Steel Ltd. v. CCE, Vishakhapatnam - 2004 (173) E.L.T. 239 (Tri. - LB), wherein it was held that Modvat credit against DEPB Debits cannot be allowed, as duties are exempted under the DEPB Scheme and the relevant notification. 7. We find that the provisions in the said Finance Act specify the Education Cess as 2% of the customs duty levied and collected. In the case of imports under the DEPB Scheme, which are fully exempt, the customs duty is nil. Hence the Education Cess being 2% of the customs duty is also nil. If it were the intention of the P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 45/2002-Cus., dated 22-4-02, whereas in the present matter Notification No. 89/2005-Cus., dated 4-10-05 is involved. The condition No. (vi) of Notification No. 89/2005-Cus. was not there in Notification No. 45/2002-Cus. and as such there is vital difference between these two notifications. The ratio of law declared by the Tribunal in the case of Reliance Industries Ltd. will not apply. 6.We have considered the condition No. (vi) of Notification No. 89/2005-Cus. The same is to the following effect. "(vi) that the importer shall be entitled to avail the drawback or CENVAT credit of additional duty leviable under Section 3 of the Customs Tariff Act against the amount debited in the said Duty Entitlement Pass Book" We find that the above con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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