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TMI Blog2024 (12) TMI 405X X X X Extracts X X X X X X X X Extracts X X X X ..... DTA clearance and discharged the applicable excise duty in terms of Section 3(1) of the Central Excise Act, 1944. The Revenue appears to have invoked Section 3(b)(ii) ibid r/w Rule 17 of the Central Excise Rules, 2002 and vide the communication dated 6.3.2009 indicated that the aggregate duties of customs of import of the like goods into India was a measure of excise duty chargeable on the goods cleared by 100% EOU to DTA and hence, on the aggregate duties of customs, education cess and secondary higher education cess and higher education cess would be chargeable once again, even though the aggregate duties of customs included education cess and secondary higher education cess, which appears to have been paid by the appellant under-protest. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Chennai Bench and the Bench, after having considered the decision of larger bench of the Tribunal in the case of Kumar Arch Tech Pvt. Ltd. Vs. CCE, Jaipur reported in 2013 (290) ELT 372 (Tri. LB) has held that the demand confirmed in the against the taxpayer therein was not called for and accordingly set aside the demand therein. Relevant observations are as under: "5. We find that the issue whether educational cess and secondary and higher education cess are chargeable on DTA clearance made by 100% EOU even if such cess were added while calculating the aggregate duties of customs payable under the Customs Act, 1962 or under any other law in force, has been answered by the Larger Bench of the Tribunal in Kumar Arch Tech Pvt. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n only, Sections 93 & 94 of Finance Act, 2004 and Sections 138 and 139 of Finance Act, 2007 while defining the measure of education cess and S&H cess in respect of excisable goods and imported goods respectively, specifically provide that the aggregate of duties of excise or aggregate of duties of customs levied by the Central Government in the Ministry of Finance (Deptt. of Revenue), on which this cess is to be levied as surcharge, would not include the education cess and S&H cess. Thus, the intention of the legislature was never to charge education cess on education cess. In fact this is not permissible from very mode of this levy as prescribed in Section 91 of the Finance Act, 2004 and Section 136 of the Finance Act, 2007, as when a new ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of duties of customs on which education cess under Section 93 of Finance Act, 2004 and S&H cess under Section 138 of Finance Act, 2007 is to be charged, would not include education cess and S&H cess under Section 94 of Finance Act, 2004 and Section 139 of Finance Act, 2007. In other words, the education cess and S&H cess would be chargeable only once under Section 93 of Finance Act, 2004 and Section 138 of Finance Act, 2007 on the sum of basic customs duty and Additional customs duty."
5. In view of the above, the impugned order cannot sustain for which reason the same is set aside. The appeal is allowed with consequential benefit, if any, as per law.
( Order pronounced in open court on 05. 12. 2024 ) X X X X Extracts X X X X X X X X Extracts X X X X
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