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TMI Blog2023 (9) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... , thus, would be entitled to the benefit of the exemption notification. As the decision of the Commissioner (Appeals) is based solely on the decision rendered by the Supreme Court in Bajaj Auto, has been held to be per incuriam and the Supreme Court has held that simply because one kind of duty is exempted, other kinds of duties automatically fall cannot be accepted. Therefore, NCCD shall continue to be levied despite the Notification exempting the payment of excise duty. The impugned order dated November 15, 2019 passed by the Commissioner (Appeals), therefore, cannot be sustained and is set aside - appeal allowed. - MR. DILIP GUPTA, PRESIDENT AND MR. P. V. SUBBA RAO, MEMBER (TECHNICAL) Shri Sanjay Kumar Singh, Authorized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er referred to as the National Calamity Duty), at the rates specified in the said Schedule; (2) The National Calamity 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 (1 of 1944) or any other law for the time being in force; (3) The provisions of the Central Excise Act, 1944 (1 of 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 relatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in Bajaj Auto rendered by two Hon ble Judges, but learned authorized representative appearing for the department has submitted that in view of the subsequent decision of the Supreme Court in M/s. Unicorn Industries vs. Union of India [ 2019 (370) ELT 3(SC) ] decided by a Bench of three Hon ble Judges, NCCD would be leviable under the GST Regime. The Supreme Court, in Unicorn examined this matter at length and the relevant paragraphs are reproduced below: 23. The submission raised on behalf of appellant is that the duty and cess in the nature of excise duty cannot be realized, particularly in view of the provisions in the Finance Acts of 2001, 2004 and 2007 relating to refund and exemption, which have made applicable, the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise duty levied under the Central Excises and Salt Act, 1944, but also in respect of special duty of excise levied under the relevant Finance Acts, because the language used in the notification was not restrictive and it referred generally to 'duty of excise' without any qualification, therefore, it covered all duties of excise whether levied under the Central Excises and Salt Act, 1944 or under any other Central enactments. The dispute pertained to the period from November, 1979 to October, 1982. xxx xxx xxx 35. The question arose for consideration before this Court as to what is the real import of the expression 'duty of excise' in the notifications dated 1-8-1974 and 1-3-1981 and whether it includes the duties of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eference to the source of power to exempt the NCCD, education cess, secondary and higher education cess. A notification has to be issued for providing exemption under the said source of power. In the absence of a notification containing an exemption to such additional duties in the nature of education cess and secondary and higher education cess, they cannot be said to have been exempted. The High Court was right in relying upon the decision of three-Judge Bench of this Court in Modi Rubber Limited (supra), which has been followed by another three-Judge Bench of this Court in Rita Textiles Private Limited (supra). xxx xxx xxx 42. The decision of Larger Bench is binding on the Smaller Bench has been held by this Court in several de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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