9911796707
TMI Blog2013 (10) TMI 1040X X X X Extracts X X X X X X X X Extracts X X X X ..... on Nos. 28/2010 and 29/2010 and this exemption cannot be applicable only to the cess leviable as a percentage of C.E.C. since no such differentiation has been made - even after Excise duty was introduced on Coal in the Finance Act, 1994, this notification has been left un-amended - Following Commissioner of Cus. & C. Ex., Shillong vs. Dharampal Satypal Ltd. [2011 (8) TMI 99 - GAUHATI HIGH COURT ] - the levy and calculation of Education Cess is independent of levy of Excise duty - it is not necessary that when Excise duty is levied, Cess is consequently leviable and vice versa - the appellant has made out prima facie case in their favour for eligibility of exemption from Education Cess - there shall be waiver of pre-deposit and stay against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om Excise duty, refund, offences and penalties, confiscation and procedure relating to offences and appeals shall, with such modifications and alterations in respect of Cess levied under sub-section (3) of Section 83 of the Finance Act. 1994. The C.E.C. is leviable on all the goods specified in Tenth Schedule. He submits that the Notification No. 28/2010-C.E. dated 22.6.2010 and 29/2010-C.E. dated 22.6.2010 have been issued exempting all the goods specified in Tenth Schedule to the Finance Act, 2010 from Education Cess and SHE Cess. It is his submission that coal is specified in the Tenth Schedule and the exemption is not limited to cess leviable as a percentage of C.E.C. but all the goods listed in the Tenth Schedule are exempted. 3. Hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind that the decision of the Honble High Court of Gauhati in the case of Commissioner of Cus. C. Ex., Shillong vs. Dharampal Satypal Ltd. [2010 (275) ELT 71 (Gau.)] would be applicable to the facts of this case. In that case, it was held that the levy and calculation of Education Cess is independent of levy of Excise duty. Therefore, it is not necessary that when Excise duty is levied, Cess is consequently leviable and vice versa. In these circumstances, the appellant has made out prima facie case in their favour for eligibility of exemption from Education Cess. Accordingly, there shall be waiver of pre-deposit and stay against recovery of adjudged dues during pendency of the appeal. (Operative portion of the order has been pronounced ..... X X X X Extracts X X X X X X X X Extracts X X X X
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