2014 (10) TMI 277 - AT - Central Excise

Tribunal rules in favor of appellant Neelikon Foods on education cess levy dispute

M/s NEELIKON FOODS DYES AND CHEMICALS LTD. Versus COMMISSIONER OF CENTRAL EXCISE, RAIGAD

The Tribunal ruled in favor of the appellant, M/s Neelikon Foods Dyes and Chemicals Ltd., in a case concerning the levy of education cess on goods cleared ... 100% EOU - DTA clearance - Education Cess taken into account while computing the CVD element of the customs duty - cess again included in the aggregate of the customs duty - Held that:- Issue involved in the present appeal is identical to that considered by the Larger Bench in the Kumaran Arch Tech Pvt. Ltd. case (2013 (4) TMI 482 - CESTAT NEW DELHI). Therefore, the ratio of the said decision would squarely apply. Accordingly, we hold that there is no need to include the cess again on the Excise duty equal to the aggregate of the Customs duty and, therefore, the impugned demands are not sustainable in law. Accordingly, we set aside the impugned order and allow the appeal with consequential relief, if any, in accordance with law - Decided in favour of assessee. Issues:1. Whether education cess can be levied over and above the duty calculated aggregate to customs duty on goods cleared by a 100% EOU.2. Enforcement of stay order against the Revenue's adjustment of dues from refunds due to the appellant.Issue 1:The judgment addresses the issue of whether education cess can be levied on goods cleared by a 100% EOU over and above the duty calculated aggregate to customs duty. The Commissioner of Central Excise (Appeals) had confirmed a duty demand, interest, and penalty on the appellant, M/s Neelikon Foods Dyes and Chemicals Ltd. The appellant challenged this decision, citing a precedent set by the Larger Bench in the case of Kumaran R. Tech Pvt. Ltd. The Larger Bench had ruled that since cess is already included in the Customs duty calculation, adding it again for Excise duty would be redundant. The Tribunal agreed with this reasoning, holding that the impugned demands were not sustainable in law. Consequently, the impugned order was set aside, and the appeal was allowed with consequential relief, if any.Issue 2:The second issue pertains to the enforcement of a stay order against the Revenue's adjustment of dues from the appellant's refunds. The Tribunal noted that despite the stay granted to the appellant, the Revenue had adjusted the dues from the refunds. The appellant was directed to file a miscellaneous application seeking enforcement of the stay order. However, since the main matter was taken up for final disposal, the Tribunal did not consider the grounds raised in the miscellaneous application as they were deemed infructuous.In conclusion, the judgment clarifies the applicability of education cess on goods cleared by a 100% EOU and emphasizes adherence to legal principles established by precedents. It also underscores the importance of enforcing stay orders to protect the rights of the parties involved in legal proceedings.