EDUCATION CESS AND HIGHER EDUCATION CESS – ON OIL CESS

Section 15 of the Oil Industry (Development) Act, 1974 provides for the collection of Oil Cess on crude oil and natural gas, which is produced in India (including the continental Shelf thereof) and-

• removed to a refinery or factory; or
• transferred by the person by whom such item is procured to another person,

a duty of excise at such rate not exceeding the rate set forth in  the schedule as the Central Government may, by notification in the Official Gazette, specify.

The issue to be discussed in this issue is whether education cess and higher education cess are liable to be levied on this oil cess with reference to decided case law.

In ‘Cairn India Limited V. Commissioner of Central Excise, Jaipur-II’ - 2015 (2) TMI 641 - CESTAT NEW DELHI   the Department was of the view that education cess and secondary and higher secondary education cess is leviable on the oil cess and confirmed the demand of ₹ 21,80,957/- along with interest.   The order was passed by the Additional Commissioner and confirmed by the Commissioner (Appeals).

The appellant filed the present appeal before the Tribunal.  The appellant submitted the following-

• in terms of provisions of Section 91 read with Section 93 of the Finance Act, 2004 and Section 136 read with Section 138 of the Finance Act, 2007, the education cess and secondary and higher education cess is leviable on the aggregate of all duties of excise, including special duty of excise or any other duty of excise but excluding education cess and secondary and higher secondary cess, which are levied by the Ministry of Finance, Department of Revenue under the provisions of Central Excise Act, 1944 or under any other law for the time being in force;
• the Oil cess is levied under Section 15 of the Oil Industries (Development) Act, 1974 by the Ministry of Petroleum and Natural Gas and hence, on this case, education cess and secondary and higher secondary education cess cannot be charged.
• The Tribunal in ‘Sahakari Kahnnd Udyog Mabndli Limited V. Commissioner of Central Excise, Daman’ - 2008 (8) TMI 98 - CESTAT, AHMEDABAD  held that sugar cess being levied by Ministry of Consumer Affairs cannot be included in the aggregate of the duties of excise for the purpose of levy of education cess, which has been confirmed by the  Gujarat High Court;
• The impugned order is not sustainable.

The Revenue defended the impugned order reiterating the findings of the Commissioner (Appeals).   The Tribunal considered the submissions of both the parties.  The Tribunal held that in terms of the provisions of Section 91 read with Section 93 of the Finance Act, 2004 and Section 136 read with Section 138 of the Finance Act, 2007, for the purpose of charging education cess and secondary and higher secondary education cess, the excise duty would include on those cess levied as duty of excise, which are levied by the Ministry of Finance, Department of Revenue.   Since the oil cess is levied by the Ministry of Petroleum, even though it is collected by the Ministry of Finance as excise duty, the same cannot be included in the duty of excise for the purpose of education cess.  The Tribunal held that the impugned order is not sustainable.