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TMI Blog2011 (8) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... -28/Kol/07 dated 20-01-2007 passed by the Customs, Excise and Service Tax Appellate Tribunal, East Zone Bench, Kolkata in Central Excise Appeal No.EDM-409/05. 2. The appeal was admitted on 16-7-2009 when the following substantial question of law was framed for consideration:- Whether Education Cess or (on) goods is a duty exempted under Notification No.32/99-CE dated 08.07.1999 and, if not, whether CENVAT Credit under the CENVAT Credit Rules, 2004 can be utilized, towards payment of such duty, which is not exempted under the said Notification. 3. At the time of final hearing, a preliminary objection was raised by learned counsel for the assessee to the effect that the appeal is not maintainable and in fact the appropriate remedy for the Revenue would be to approach the Supreme Court under Section 35-L of the Central Excise Act, 1944. 4. It was contended that the question involves duty exemption on goods, which in turn concerns the rate of duty on the goods. In such a case, Section 35-G of the Central Excise Act, 1944 excludes the jurisdiction of the High Court to entertain an appeal. In our opinion, the preliminary objection has no merit. 5. The relevant porti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... import but, in the context of its use in the said expression in Section 129-C, it must be read as meaning a direct and proximate relationship to the rate of duty and to the value of goods for the purposes of assessment. 7. In this context, the Supreme Court referred, in paragraph 11 of the Report, to the Explanation to Section 129-D(5) of the Customs Act, 1962. The Section deals with the powers of the Central Board of Excise and Customs and the Collector of Customs to call for and examine the record of any proceedings before an authority subordinate thereto and to examine the legality or propriety thereof. The Explanation says that the words determination of a rate of duty in relation to any goods for the purposes of assessment includes the determination of a question relating to the rate of duty; to the valuation of goods for purposes of assessment; to the classification of goods under the Tariff and whether or not they are covered by an exemption notification and whether the value of goods for the purposes of assessment should be enhanced or reduced having regard to certain matters that the Customs Act provides for. 8. In paragraph 11 and 12 of the Report, the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government. 11. Section 91 and Section 93 of the Finance (No.2) Act, 2004 ar given below: 91. Education Cess. (1) Without prejudice to the provisions of sub-section (11) of section 2, there shall be levied and collected, in accordance with the provisions of this Chapter as surcharge for purposes of the Union, a cess to be called the Education Cess, to fulfil the commitment of the Government to provide and finance universalised quality basic education. (2) The Central Government may, after due appropriation made by Parliament by law in this behalf, utilise, such sums of money of the Education Cess levied under sub-section (11) of section 2 and this Chapter for the purposes specified in sub-section (1), as it may consider necessary. 92. . 93. Education Cess on excisable goods.- (1) The Education Cess levied under section 91, in the case of goods specified in the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), being goods manufactured or produced, shall be a duty of excise (in this section referred to as the Education Cess on excisable goods), at the rate of two percent, calculated on the aggregate of all duties of excise (including specia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , (b) additional duties of excise leviable under sub-section (3) of Section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957); and (c) the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 leviable under sub-section (3) of Section 3 of the said Act mentioned in the said notification? 14. The Jammu Kashmir High Court took the view that the question posed would not fall within the parameters of Section 35-G of the Central Excise Act but within the parameters of Section 35-L thereof. This is what the Jammu Kashmir High Court had to say in paragraphs 7 to 9 of the Report:- 7. The aforesaid judgment [Navin Chemicals] is followed by Bombay High Court in Commissioner of Customs and C. Ex., Goa v. Primella Sanitary Products (P) Ltd. 2002 (145) ELT 515 (Bom). The Punjab and Haryana High Court has also considered the scope of Section 35L(b) of the Act in Commissioner of Central Excise, Chandigarh v. Suraj Udyog Ltd. 2003 (158) ELT 684 (P H). Reference may also be made to the Rajasthan High Court decision in Laxmi Udyog v. Commissioner of Central Excise, 2002 (142) ELT 27 (Raj). The Delhi High Court also had the occasio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maintainable. If it does have a direct and proximate impact, then an appeal would lie to the Supreme Court under Section 35-L of the Central Excise Act, 1944. In our opinion, with respect, this issue has been lost sight of in Bharat Box and that is why we are unable to agree with the Jammu Kashmir High Court. Moreover, on our reading of Navin Chemicals and the statute levying the Education Cess, we are of the opinion that its levy has no drect and proximate relationship with the rate of excise duty on the manufacture of goods. 16. Under the circumstances, while disagreeing with the view expressed by the Jammu Kashmir High Court, we reject the preliminary objection raised by learned counsel for the assessee. 17. We may mention that, on merits, a similar issue had arisen before us with regard to the National Calamity Contingency Duty leviable under Section 136 of the Finance Act, 2001. That duty was a also surcharge as in the present case. In Commissioner of Central Excise, Dibrugarh v. Prag Bosimi Synthetics Ltd, Central Excise Reference No.2 of 2008 decided on 29-6-2011 we had taken the view that the National Calamity Contingency Duty is not exempted under Notification ..... X X X X Extracts X X X X X X X X Extracts X X X X
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