Pre-deposit waiver on Education Cess for 100% EOU DTA clearances granted after binding Larger Bench precedent.

Education Cess and Secondary and Higher Education Cess on DTA clearances by a 100% EOU were assessed on the method of calculating excise duty, and the issue had already been decided by a Larger Bench in favour of the assessee. That binding precedent governed the Division Bench, so the appellant established a prima facie case for relief. Waiver of pre-deposit was granted and recovery was stayed pending disposal of the appeal.

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Issues: Whether the appellant was entitled to waiver of pre-deposit and stay of recovery in respect of the demand relating to Education Cess and Secondary and Higher Education Cess on clearances made by a 100% EOU into DTA.

Analysis: The demand turned on the method of calculating Education Cess on excise duty payable for DTA clearances by a 100% EOU. The issue had already been decided by the Larger Bench in favour of the assessee, and that view was binding on the Division Bench. Since the confirmed amount arose only from that issue, the appellant had made out a case for waiver of pre-deposit.

Conclusion: Waiver of pre-deposit was granted and recovery was stayed till disposal of the appeal.

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