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TMI Blog2017 (2) TMI 716X X X X Extracts X X X X X X X X Extracts X X X X ..... ontingent Duty (NCCD) for different periods. NCCD is levied under Section 136 of the Finance Act, 2001. As per the Revenue, the notification in question grants exemption only from the payment of duty in respect of basic excise duty payable in terms of Central Excise Act, 1944, Additional Duties of Excise (Goods of Special Importance) Act, 1957 and sub-section (3) of the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978. As such, there is no exemption from payment of NCCD. Accordingly, demands were raised for various periods for NCCD, Education Cess and Secondary Higher Education Cess under Section 11A and also interest and penalty under appropriate Sections. 3. With this background, heard Shri S. Ganesh, Id. Sr. Counsel. He was fair enough to admit that the issue for demanding NCCD, Education Cess and Secondary Higher Education Cess stands settled against the appellant as per the ratio laid-down by the following case laws: i) Bajaj Auto Ltd. Vs. Union of India and three Others - (Writ Petition No. 2222 of 2011 (M/s) decided by the High Court of Uttarakhand at Nainital ii) CCE, Dibrugarh Vs. Prag Bosimi Synthetics Ltd. - 2013 (295) ELT 682 (Gm.) However, he a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 8th July, 1999]; (iii) No. 39/2001-CE, dated the 31st July, 2001 [G.S.R. 565(E) dated the 31st July, 2001]; (iv) No. 56/2002-CE, dated the 14th November, 2002 [G.S.R. 764(E), dated the 14th November, 2002], (v) No. 57/2002-CE, dated 14th November, 2002 (G.S.R. 765(E), dated the 14th November, 2002]; (iv) 56/2003-CE, dated the 25th June, 2003 [G.S.R. 513 (E), dated the 25th June, 2003]; and (vii) No. 71/2003-Central Excise, dated the 9th September, 2003 [G.S.R. 717(E), dated the 9th September, 2003] Shall, respectively, be utilised only for payment of duty on final products, in respect of which exemption under the said respectively notifications is availed of Rule 3(4) provides that CENVAT credit may be utilised, inter alia, for payment of any duty of excise on any final product. To this extent also there is no dispute between the parties. However, what is of importance is the second proviso to Rule 3(4) of the CENVAT Credit Rules. This provides that the CENVAT credit of duty paid on inputs used in the manufacture of a final product cleared after availing of the exemption under Notification No. 32/99-CE, shall be utilised only for payment of duty on the final product ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1/2011-CE, dated the 1St March, 2011 is availed;". It is the submission of the Id. Counsel that as per Rule 3(4) the final product. He further submits that three demands i.e. NCCD, Education Cess, Secondary Higher Education Cess have been made. So he pleaded that these demands can be set off against the cenvat credit. Ld. Counsel also submits that though NCCD does not specifically find mention in the exemption notification the same has to be considered as duty of excise and as such has to be considered as mentioned above. Lastly, he submits that against the demands the cenvat credit paid on inputs may kindly be allowed. He submits that in Appeal Nos. E/3575/2010 & E/3890/2010, the adjudicating authority has not discussed this point though the issue was raised in the reply to the show cause notice. In all other appeals the issue was discussed but claim was- denied by the adjudicating authority. 6. To counter it, Id. AR Sh. Yogesh Agarwal appearing for Revenue submits that the Area Based exemption notification No. 50/2003 dated 10.06.2003 relates to excise duty whereas NCCD is not excise duty within the meaning of the said expression under the said notification. 7. He submitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided in all the impugned orders that the appellant will not be entitled to exemption for the above three types of duties inspite of enjoying the benefit of exemption under Notification No. 50/2003. From the detailed submissions made by the Id. Counsel for the appellant, it emerges that the issue already stands decided against the appellant and the Id. Counsel has fairly admitted the same. He has conceded that the issue stands decided against them by both the High Courts of Uttarakhand in the case of Bajaj Auto Limited as well as by the Hon'ble High Court of Gauhati in the case of Prag Bosimi (supra). To understand the reasoning adopted by the Hon'ble High Court we give below the relevant finding of the Hon'ble Gauhati High Court. It is to be recorded that the Id. Commissioner did not have the benefit of the above decisions at the time of passing the impugned orders. "[Judgment per: Madan B. Lokur, CJ.]. - In this appeal under Section 35G of the Central Excise Act, 1944 the following substantial question of law has been framed for consideration:- "Whether NCC Duty (National Calamity Contingent duty) is a duty exempted under Notification No. 32/99-CE, dated 8.7.1999 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al exemption is only in respect of the duty of excise or additional duty of excise under any of the above Acts, namely, the Central Excise Act, 1944, the Additional Duties of Excise (Goods of Special Importance) Act, 1957 and the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978. The general exemption has absolutely no reference to NCC duty which is levied as a surcharge under the provisions of the Finance Act, 2001. 7. Consequently, insofar as the first part of the substantial question of law framed above is concerned, it must be answered in the negative which is to say that NCC duty, even though it is a duty of excise, is not exempted under Notification No. 32/99-CE. The operation of this notification is limited". 9. It is to be noted that the decision of the Gauhati High Court has been rendered in the context of Notification No. 32/99-CE whereas the Notification availed by the appellant is different namely 50/2003. But we are of the view that the ratio of the Hon'ble High Court decision is very much applicable to the Notification No. 50/3003. Accordingly, we uphold the demands made in the various impugned orders. 10. Now, we turn to the request made by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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