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TMI Blog2014 (12) TMI 949X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. But, it was made clear that in respect of all the three taxes, the surcharge collected along with the tax will bear the same character of respective taxes to which surcharge was appended and was to be governed by the respective enactments under which Education Cess in the form of surcharge is levied & collected. Section 91 also stipulates that these shall be levied and collected as surcharge, a cess to be called Education Cess. In respect of these taxes the surcharge collected along with tax will bear the same character of respective taxes to which surcharge was appended and was to be governed by respective enactments under which Education cess in the form of surcharge is levied and collected. Government notes that the automobile cess is not levied and collected as surcharge and also there are no parallel provisions with reference to automobile cess as contained in Section 91, 92 & 93 of Finance Act 2004 Moreover the automobile cess is levied and collected in terms of Notification No. SO. 247(E) dated 22.3.90 and not under Central Excise Act 1944. In view of these circumstances the ratio of said Rajasthan High Court judgement [2007 (7) TMI 308 - HIGH COURT OF JUDICATURE FOR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd subsequently the Hosur plant had exported the said vehicles received from Mysore plant. They had filed rebate claims under Rule 18 of Central Excise Rules 2002. The original adjudicating authorities have sanctioned major portion of the rebate claimed and disallowed the rebate of automobile cess on the ground that the Notification No. 19/2004-CE(NT) dated 6.9.2004 does not specify automobile cess as duty for the purpose of granting rebate and, that certain amount of rebate claimed, for non-fulfillment, of condition 2(b) of Notification No. 19/2004-CE(NT) dated 6.9.2004. 3. Being aggrieved by the said orders-in-original, applicant filed appeals before commissioner (Appeal) who rejected the same. 4. Being, aggrieved by the impugned order-in-appeal, the applicant has filed this revision application under Section 35EE of Central Excise Act, 1944 before Central Government on the following grounds: 4.1 The applicants submit that the impugned order rejecting the rebate claim by the Commissioner of Central Excise (Appeals) Mangalore has been passed without fully appreciating the factual and the legal position in the proper perspective and the said order deserves to be set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the date of ARE-1 and the date of invoice, which was prepared by the Hosur unit while clearing the goods for export, are relevant for the purpose of calculating the period of six months envisaged in the NotificationNo.19/2004 dated 06.09.2004. The applicants therefore submit that they have complied with the condition 2(b) of the said notification and their rebate claim is maintainable as the export was within the period of six months. Without prejudice to above Contention; the applicants also submit that the condition requiring export of goods within six months from the date of clearance from the factory of manufacture is only procedural in nature and the department cannot deny the rebate on such procedural lapse when the act of export is not disputed. In this regard, the applicants rely on the order-in-original No.19/2007 (Rebate) dated 10.04.2007/11.04.2007 passed by Assistant Commissioner in the appellant's own case for the month of September 2006 wherein, he has accepted the submission of the applicants and has also followed the order-in-appeal No.132/2007-CE dated 16.03.2007/20.03.2007 passed by the CCE(A) wherein, the appellate authority had allowed the appeals of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidered them as not a duty of excise. As stated above the applicants submit that the Rule 3 of the Automobile Cess Rules,1984 makes applicable the provisions of the Central Excise Salt Act, 1944 and the Rules made thereunder including those relating to refund of duty shall be applicable to the levy and collection of cess. 4.5 The applicants submit that as submitted elsewhere, the CBEC itself has vide their circular dated 20.03.2007 stated that in cases where goods are exported under bond, the applicable cess would be liable to be paid unless it is exempted by a notification. In the instant case, it is submitted that the cess which is a duty of excise is exempted vide the Notification dated 06.09.2004. Further, as submitted above the CBEC Circular dated 08.10.2007 itself clarified that the instructions dated 22.03.1990 issued by the Department of Industrial Development is a Notification and therefore it would be covered by word 'notification' used in Board's letter dated 20.03.07. Thus, the Board clarified that the automobile cess would be eligible as rebate in view of the instructions issued by the Department of Industrial Development. Without prejudice to the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebate of duty paid on exported goods is to be allowed as per statutory provision contained in the Rules 18 of Central Excise Rules 2002 read with Notification No. 19/04-CE(NT) dated 6.9.04. The duties to be rebated are specified in Explanation I of Notification No. 19/04: CE(NT). The said explanation 1 is extracted below for the sake of proper understanding of issue: 'Explanation I- duty for the purpose of this notification means duties of excise collected under the following enactments, namely: (a) the Central Excise Act; 1944 (1 of 1944); (b) the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957); (c) the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978); (d) the National Calamity Contingent duty leviable under section 136 of the Finance Act, 2001 (14 of 2001), as amended by section 169 of the Finance Act, 2003 (32 of 2003) and further amended by section 3 of the Finance Act, 2004 (13 of 2004); (e) special excise duty collected under a Finance Act; (t) additional duty of excise as levied under section 157 of the Finance Act, 2003 (32 of 2003); (g) Education Cess on excisable g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fulfill 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 92. Definition - The words and expressions used in this Chapter and defined in the Central Excise Act, 1944 (1 of 1944), the Customs Act, 1962 (52 of 1962) or chapter V of the Finance Act 1994 (32 of 1994) shall have the meanings respectively assigned to them in those Acts Chapter, as the case may be 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 ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 94 and 95 of respective taxes was the levy for the; purpose of Union and was to be utilised by the Union to fulfil the commitment of the Central Government to provide and finance universalised quality of basic education, as has been given out under section 91 of the Act. 15. The very fact that the surcharge is collected as part of levy under three different enactments goes to show that scheme of levy of Education cess was by way or collecting special funds for the purpose of Government project towards providing and financing universalised quality of basic education by enhancing the burden of Central Excise Duty, Customs Duty, and Service Tax by way of charging surcharge to be collected for the purpose of Union. But, it was made clear that in respect of all the three taxes, the surcharge collected along with the tax will bear the same character of respective taxes to which surcharge was appended and was to be governed by the respective enactments under which Education Cess in the form of surcharge is levied collected 16. Apparently, when at the time of collection, surcharge has taken the character of parent levy, whatever may be the object behind it, it becomes Subject to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t if the Education Cess would have been collected not as surcharge but as an independent levy and matter would have been left to be considered independently for the purpose of providing rebate in respect thereof. The Notification dated 6/9/2004 had included the definition of Excise Duty only in consonance with the meaning of Excise Duty as was existing on the date Notification was issued, even if Explanation would not have been there the term Duty of Excise in ordinary circumstance would have included the surcharge levied as Education Cess in terms of Section 93 of the Act of 2004. Government finds that the Hon ble High Court had examined the issue of admissibility of rebate claim of education cess in the context of Section 91, 92 93 of the Finance Act .1994. The Section 93 specifically says that Education cess levied under Section 91 shall be a duty of excise. Section 91 also stipulates that these shall be levied and collected as surcharge, a cess to be called Education Cess. Hon ble High Court observed that it was made clear that in respect of these taxes the surcharge collected along with tax will bear the same character of respective taxes to which surcharge was appended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvoice, which was prepared by the Hosur unit While clearing the goods for export are relevant for the purpose of calculating the period of six months. Government finds that the provisions of para 1(iii) of the part-1 of Chapter 8 of Supplementary Instructions, 2005 and condition 23 (b) of Notification No. 19/04 CE(NT) stipulated that excisable goods shall be exported within six months from the date on which they were cleared for export from the factory of manufacture or warehouse. In this case initially goods were not cleared for export but it was a stock transfer to their own unit at Hosur on payment of duty. Since the goods are exported from Hosur unit on ARE-1/Invoice, the said goods are cleared for export on the date of preparation of ARE-1 at Hosur unit. Since the goods are exported within six months of their clearance from Hosur unit (date of ARE-1/invoices), the allegation of violation of condition 2(b) of the Notification No.19/2004-CE(NT) does not survive and hence, rebate claims cannot be disallowed on this count. 14. It is pertinent to mention here that GOI has decided the identical issue of automobile cess vide GOI order-No.1213/2010-Cx-dated-7.7.2010; in case of rev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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