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TMI Blog2022 (10) TMI 500X X X X Extracts X X X X X X X X Extracts X X X X ..... ance Act, 2001? - HELD THAT:- NCCD is a surcharge of the excise duty. The case of the petitioners is that, when excise duty is not levied, NCCD cannot be levied and there was no excise duty on tobacco and tobacco products from 01.07.2017 to 06.07.2019 and NCCD could not have been levied during the said period - Surcharge is an additional charge or payment. Section 136 of the Finance Act, 2001 contemplates levying and collecting NCCD, which is considered as a surcharge, a duty of excise. Thus NCCD is not contemplated in Section 136 as a levy on the excise duty levied under the Central Excise Act, but a separate duty being levied on the value of the goods manufactured or produced and it is a type of excise duty. The Finance Act, 2001 sought to levy NCCD on the goods as described in the Seventh Schedule. For better clarification, reference is made out in the Central Excise Act. Repealing of the Central Excise Act does not absolve the petitioners paying NCCD as determined under the Seventh Schedule - NCCD is a surcharge and a type of excise duty which can be levied independently of the excise duty as contemplated under the provisions of Fourth schedule to the Central Excise Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alamity duty chargeable on the goods specified in the Seventh Schedule shall be in addition to any other duties of excise chargeable on such goods under the Central Excise Act, 1944 or any other law for the time being in force. (3) The provisions of the Central Excise Act, 1944 and the rules made thereunder, including those relating to refunds and exemptions from duties and imposition of penalty, shall, as far as may be, apply in relation to the levy and collection of the National Calamity duty leviable under this section in respect of the goods specified in the Seventh Schedule as they apply in relation to the levy and collection of the duties of excise on such goods under that Act or those rules, as the case may be. Thus, NCCD is levied as a duty by way of surcharge. 5. Tobacco and tobacco products are being taxed under the provisions of CGST Act, 2017, since its inception in 2017. By notification No.11/2017 dated 30.06.2017, exemption from levy of excise duty was granted to tobacco and tobacco products. However, NCCD was continued to be levied on tobacco and tobacco products under Section 136 of the Finance Act, 2001. Thereafter, by notification bearing No.3/2019 dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Act, 1944 and the levy and collection of NCCD under Section 136 of the Finance Act, 2001. g. To issues order(s), directions, writ(s) or any other relief as this Hon'ble Court deems it fit and proper in the facts and circumstance of the case in the interest of justice. In WP Nos.101969/3030, 123492/2020 and 146879/2020 A. Issue a writ in the nature of certiorari or any other appropriate writ direction, order quashing the notification No. 3 of 2019, dated 06.07.2019, issued by the First Respondent, purporting to exercise power under Section 5 (A) of Central Excise Act, 1944, levying Central Excise on tobacco and tobacco products. A copy of the said Notification is produced herewith as Annexure 'A'. B. Declare that no excise duty under the Central Excise Act, 1944 is payable on the goods manufactured by the Petitioner namely tobacco and tobacco products and is entitled to the refund of the Basic Excise Duty paid pursuant to the issuance of Annexure A. C. Declare the Repeal and Saving provision of Section 174 of the Central Goods and Service Tax Act, 2017, insofar as it seeks to save the operation of the Central Excise Act, 1944, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the facts and circumstance of the case in the interest of justice. In WP No.101916/2021 a. Issue a Writ in the nature of certiorari or any other appropriate Writ direction, order quashing the Order-inOriginal No. BEL EXCUS-000-HBL-DIV-JC-RSB-004-202021(CX) dated 25.03.2021 issued by Respondent No.2, enclosed at Annexure-A, as being without jurisdiction and unconstitutional. b. To issue a writ of Mandamus or any other Writ, order(s), directions, writ(s) declaring that no excise duty under the Central Excise Act, 1944 is payable on the goods manufactured by the Petitioner namely tobacco and tobacco products; c. To issue a writ of Mandamus or any other Writ, order(s), directions, writ(s) declaring that the Repeal and Saving provision of Section 174 of the Central Goods and Service Tax Act, 2017, insofar as it seeks to save the operation of the Central Excise Act, 1944, qua tobacco and tobacco products, as unconstitutional and bad in law; d. To issue a writ of Mandamus or any other Writ, order(s), directions, writ(s) declaring and holding that Section 136 of the Finance Act, 2001, under which there is a levy and collection of NCCD, is impliedly repealed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der; or (c) affect any right, privilege, obligation, or liability acquired, accrued or incurred under the amended Act or repealed Acts or orders under such repealed or amended Acts: Provided that any tax exemption granted as an incentive against investment through a notification shall not continue as privilege if the said notification is rescinded on or after the appointed day; or (d) affect any duty, tax, surcharge, fine, penalty, interest as are due or may become due or any forfeiture or punishment incurred or inflicted in respect of any offence or violation committed against the provisions of the amended Act or repealed Acts; or (e) affect any investigation, inquiry, verification (including scrutiny and audit), assessment proceedings, adjudication and any other legal proceedings or recovery of arrears or remedy in respect of any such duty, tax, surcharge, penalty, fine, interest, right, privilege, obligation, liability, forfeiture or punishment, as aforesaid, and any such investigation, inquiry, verification (including scrutiny and audit), assessment proceedings, adjudication and other legal proceedings or recovery of arrears or remedy may be instituted, cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s granted to tobacco and tobacco products, which are the subject matter of the writ petition. However, by notification No.3/2019 dated 06.07.2019, 0.5% excise duty is charged on the said products. In addition to it, the said products were always charged NCCD. 12. This Court in W.A.No.119/2022 between M/s.V. S. Products Vs. Union of India and Another , in para 39 has held as under: 39. in view of aforementioned well settled legal principles, we have perused the grounds raised in the petition. It is pertinent to note that in the writ petition, there are no pleadings that action of levy of excise duty on tobacco and tobacco products amounts to hostile discrimination and is violative of Article 14. In the memorandum of appeal, it has been stated that tobacco and tobacco products are the only goods which have been singled out for hostile and discriminatory treatment subjecting it to two regimes of indirect taxations and therefore, it is violative of Article 14, The learned Single Judge has therefore, rightly held that no grounds are made out for application of principle of manifest arbitrariness in the pleadings. Except for alcoholic liquor for human consumption, petroleum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (S.C) in paragraph 41, 42 and 43, has held as under: 41. The Circular of 2004 issued based on the interpretation of the provisions made by one of the Customs Officers, is of no avail as such Circular has no force of law and cannot be said to be binding on the Court. Similarly, the Circular issued by Central Board of Excise and Customs in 2011, is of no avail as it relates to service tax and has no force of law and cannot be said to be binding concerning the interpretation of the provisions by the courts. The reason employed in SRD Nutrients Private Limited (supra) that there was nil excise duty, as such, additional duty cannot be charged, is also equally unacceptable as additional duty can always be determined and merely exemption granted in respect of a particular excise duty, cannot come in the way of determination of yet another duty based thereupon. The proposition urged that simply because one kind of duty is exempted, other kinds of duties automatically fall, cannot be accepted as there is no difficulty in making the computation of additional duties, which are payable under NCCD, education cess, secondary and higher education cess. Moreover, statutory notification mus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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