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TMI Blog2023 (3) TMI 946X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Sanjay Kumar Singh, authorized representative for the Department ORDER We have heard learned counsel for the appellant and learned authorized representative for the revenue and perused the records. 2. The appellant is assailing the order-in-original dated 17.12.2018 [impugned order] passed by the Commissioner, Central Goods Service Tax, Udaipur, wherein he disallowed Cenvat credit of Rs. 8,54,39,430/- taken on clean energy cess levied on coal and ordered its recovery along with interest under section 11AA and imposed penalty under Rule 15 (1) of Cenvat Credit Rules, 2004 read with section 11AC. 3. Both sides submit that the issue involved in this appeal is identical to the issue involved in respect of the same appellant in appeal No. E/52864 of 2018, which was disposed of by final order No. A/50793/2019 EX (DB) dated 24.06.2019. It was held in the final order that the appellant was not entitled to Cenvat credit on the clean energy cess paid by it and accordingly the appeal was dismissed. 4. Learned counsel for the appellant fairly submits that although the appellant had appealed against the above order, it has not been stayed or over-ruled by a hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation in the Official Gazette, declare that any of the provisions of the Central Excise Act, 1944, relating to levy of and exemption from duty of excise, refund, offences and penalties, confiscation and procedure relating to offences and appeals shall, with such modifications and alterations as it may consider necessary, be applicable in respect of cess levied under sub-section (3). 6.1.3 The perusal shows that the clean energy cess : (i) Is a duty of Excise. (ii) On the goods specified in 10th Schedule. (iii) Levied with the object of financing and promoting clean energy initiative funding research in the area of clean energy or for any other purpose relating thereto. (iv) Shall first be credited to Consolidated Fund of India. (v) Shall be utilised by Central Government for the purposes as mentioned in sub-section (3)/Clause (4) above. (vi) The cess shall be in addition to any cess or duty leviable on the goods specified in 10th Schedule. (vii) It shall be for the purposes of Union and proceeds thereof shall not be distributed among the States. (viii) Provisions of Central Excise Act, 1944 shall be applicable as far as levy of exemption from duty, refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is true that between a tax and a fee there is no generic difference. Both are compulsory exactions of money by public authorities; but whereas a tax is imposed for public purposes and is not, and need not, be supported by any consideration of service rendered in return, a fee is levied essentially for services rendered and as such there is an element of quid pro quo between the person who pays the fee and the public authority which imposes it. If specific services are rendered to a specific area or to a specific class of persons or trade or business in any local area, and as a condition precedent for the said services or in return for them cess is levied against the said area or the said class of persons or trade or business the cess is distinguishable from a tax and is described as a fee. Tax recovered by public authority invariably goes into the consolidated fund which ultimately is utilised for all public purposes, whereas a cess levied by way of Fee is not intended to be, and does not become, a part of the consolidated fund. It is earmarked and set apart for the purpose of services for which it is levied. It was further held that, It is true that when the Legislature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urden, while a fee is for payment of a specific benefit or privilege although the special advantage is secondary to the primary motive of regulation in public interest. If the element of revenue for general purpose of State predominates, the levy becomes a tax. In regard to fees there is, and must always be, correlation between the fee collected and the service intended to be rendered. In determining whether a levy is a fee, the true test must be whether its primary and essential purpose is to render specific services to a specified area of class; it may be of no consequence that the State may ultimately and indirectly be benefited by it. The power of any legislature to levy a fee is conditioned by the fact that it must be by and large a quid pro quo for the services rendered. However, correlationship between the levy and the services rendered (sic or) expected is one of general character and not of mathematical exactitude. All that is necessary is that there should be a reasonable relationship between the levy of the Fee and the services rendered. 21. From the aforesaid judgments it is clear that the traditional view is that there must be actual quid pro quo for a fee, ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for such payment on the contrary for clean energy cess, the proceeds though are credited to Consolidated Fund of India but for being utilised for a specific purpose as that of clean energy initiative, as a quid pro quo. 8. Rule 3 of CCR, 2004 is applicable only when it is established that what is paid is excise duty or in other words a tax and it is in that case only that the assessee is entitled to Cenvat credit. 9. In view of the entire above discussion, we hereby conclude that CEC in the present case is not actually a duty, it is an additional amount as that of a fee for a specific purpose that Section 3, CCR, 2004 will not be applicable. Otherwise also, Section 3 applies only to the duty of excise specified either in First Schedule to Excise Tariff Act or the Second Schedule thereto. In addition to other additional duties, as mentioned in Clause (iii) to (vii) as discussed. CEC does not fall in any of those sub-clauses. Further, the Notification No. 26/2010-C.E., dated 29-6-2010 has incorporated a proviso in Rule 3, CCR, 2004 which reads as follows : Provided also that the Cenvat credit of any duty specified in sub-rule (1) shall not be utilised for payment of clean ..... X X X X Extracts X X X X X X X X Extracts X X X X
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