9911796707
TMI Blog2019 (9) TMI 1737X X X X Extracts X X X X X X X X Extracts X X X X ..... takes the character of a duty on the product, whatever may be the rationale behind it, it is also subject to the provisions relating to excise duty, applicable to it in the manner of collection as well as the obligation of the taxpayer to discharge the duty. Once the excise duty is exempted, NCCD, levied as an excise duty cannot partake a different character and, thus, would be entitled to the benefit of the exemption notification. The exemption notification also states that the exemption is from the whole of the duty of excise or additional duty of excise. We may also note that the exemption itself is for a period of ten years from the date of commercial production of the unit. Thus, the appellants are not liable to pay the Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch as basic excise duty, NCCD, auto Cess, Education Cess and Senior Higher Education Cess under Notification No. 50/2003-CE dated 10.6.2003. Regarding the said exemption under notification, an intimation was given by appellant to the department. On 8.9.2010, the Central excise officials visited the appellants factory and made inquiry about the payment of NCCD for the period from April, 2007 to September 2010 and propose to recover the differential duty on account of non payment of NCCD on motorcycle and denying the benefit of exemption notification No. 50/2003-CE from the period April, 2007 to September, 2007 and from November, 2010 onwards demand of NCCD, auto Cess, Education Cess and Senior Higher Education Cess. The appellant paid the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise, Guwahati-2017 (355) ELT 481 (SC). He further submits that the demand of Automobile Cess is also not leviable in terms of decision of TVS Motor Co. Ltd. vs. Union of India -[2015 (323) ELT 57 (Kar). He also submitted that the extended period of limitation is also not invokable. Therefore most of the demand is barred by limitation and no penalty is payable by the appellants. 4. On the other hand, learned Authorized Representative supported the appellate order and submits that as NCCD, auto Cess, Education Cess and Senior Higher Education Cess are not covered by the Notification No. 50/2003-CE dated 10.06.2003, therefore, they are liable to pay NCCD, auto Cess, Education Cess and Senior Higher Education Cess. 5. Heard the parties. Consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court, in SRD Nutrients Pvt. Ltd. (supra) gave its imprimatur to the view expressed by the Rajasthan High Court in Banswara Syntex Ltd. (supra). The rationale is that while there may be surcharges under different financial enactments to provide the Government with revenue for specified purposes, the same have been notified as leviable in the nature of a particular kind of duty. In the case of NCCD, it is in the nature of an excise duty. It has to bear the same character as those respective taxes to which the surcharge is appended. NCCD will not cease to be an excise duty, but is the same as an excise duty, even if it is levied on the product. Thus, when NCCD, at the time of collection, takes the character of a duty on the product, wha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as well, inasmuch as Education Cess @ 2% is to be calculated on the aggregate of duties of excise. There cannot be any surcharge when basic duty itself is Nil." 11. Therefore, we hold that while claiming the Notification No. 50/2003-CE dated 10.6.2003, the appellant are not liable to pay Education Cess and Senior Higher Education Cess. 12. With regard to payment of Automobile Cess, the Hon'ble High Court of Himachal Pradesh in the case of Indo Farm Tractors and Motors Ltd. vs. Union of India [2008 (222) ELT 184 (HP) has observed as under: "16. As far as the notification regarding exemption of industries from excise duty in Uttranchal and Himachal Pradesh is concerned, the said notification specifically states that the industries shall ..... X X X X Extracts X X X X X X X X Extracts X X X X
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