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TMI Blog2024 (11) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... inance. Further, we find that this has been clarified vide Circular No. 978/2/2014-CX dated 07.01.2014 wherein, it has been clarified that education cess shall be levied only on such duties of excise/customs which are both levied as well as collected by the Department of Revenue. This issue has been considered by the Tribunal in the case of TAFE LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, MADURAI [ 2007 (11) TMI 35 - CESTAT, CHENNAI] , wherein it has been held ' Education cess under Section 93 of the Finance Act, 2004 is one levied as a duty of excise at the prescribed rate, on the aggregate of all duties of excise which are levied and collected by the Central Govt in the Ministry of Finance (Department of Revenue) under the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 11AB of the Act 2. Briefly the facts of the present case are that the appellant is engaged in manufacturing of light commercial vehicles falling under Chapter 87 of First Schedule to Central Excise Tariff Act, 1985. During the relevant period, the appellant cleared the finished goods on payment of appropriate automobile cess leviable under Section 9(1) of Industries (Development and Regulation) Act, 1951 read with Rule 2(c) of Automobile Cess Rules, 1984 without the payment of education cess and Secondary and higher education cess on the automobile cess paid by the appellant. The department issued two show cause notices for recovering the education cess and SHE cess amounting to Rs. 1,82,604 and Rs. 2,22,931 for the period April 2010 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Central Government in the Ministry of Finance (Department of Revenue) under Section 93 of Finance Act, 2004 and Section 138 of Finance Act, 2007 respectively. She further submits that automobile cess cannot be regarded as the levy by the Ministry of Finance and it is only collected by the Department of Revenue and therefore it cannot be included in the aggregate of excise duties and hence, the education cess and higher education cess cannot be levied on automobile cess. For this submission, she placed reliance on Circular No. 345/2/2004-TRU (Pt.) dated 10.08.2004 and Circular No. 978/2/2014-CX dated 07.01.2014 wherein, it has been clarified that education cess shall be levied only on such duties of excise/customs which are both levie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and therefore, the same cannot be levied on automobile cess. She further submits that the appellate authority has mainly relied upon the decision in the case of Mahindra Mahindra Ltd. v. CCE, Mumbai, 2023 (384) E.L.T. 688 (Tri.-Bom.) cited (Supra) to confirm the demand on the basis that the automobile cess is in the nature of excise duty and is levied and collected by Ministry of Finance but the said judgments of the Tribunal has been reversed by the Bombay High Court in the case of Mahindra Mahindra Ltd. v. CCE, Mumbai-V, 2020 (371) E.L.T. 481 (Bom.). 8. On the other hand, Ld. AR reiterated the findings of impugned order. 9. After considering the submissions of both the parties and perusal of the material on record, we find that the only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s framed thereunder. Rule 2 of the Automobile Cess Rules, 1984 defined 'cess' as under:- (c) cess Department of Heavy means ans the cess levied and collected Industry issued under sub-section (1) of in terms of Notification No. SO 932(E), dated 28-12-1983 of of Section 9 of the Act. Rule 3 of the said Rules adopted the relevant provisions of the Central Excise Act and the Central Excise Rules for the purpose of collection of the cess, refund of the cess etc. It appears, the lower authorities were misled by Rule 3. They thought that, where a duty leviable under a different statute by a different Ministry by the Central Excise Department, it could be regarded. as a levy by the of the Govt. of India was authorized Ministry of Finance. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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