TaxTMI 
TaxTMI 
2007 (6) TMI 325
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....xcise, as the case may be, leviable thereon under any of the three Acts, namely, The Central Excise Act, 1944; The Additional Duties of Excise (Goods of Special Importance) Act, 1957; and The Additional Duties of Excise (Textiles and Textile Articles) Act, 1978, as was equivalent to the amount of duty paid by the manufacturer of goods, other than the amount of duty paid by utilization of Cenvat Credit. Under this Notification, it was, inter alia, provided by paragraph 1A that the exemption contained therein shall be available subject to the condition that the manufacturer first utilizes whole of the Cenvat Credit available to him on the last day of the month under consideration for payment of duty on goods cleared during such months and paid only the balance amount in cash. Paragraph 2 of the said Notification laid down the manner in which the said exemption was to be given effect to. Accordingly, a manufacturer was required to submit a statement of the duty paid, other than the amount of duty paid by utilization of Cenvat Credit, to the Assistant Commissioner by the 7th of the next month, in which the duty had been paid. This obviously means that the statement of only the duty pai....
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.... three Acts, on the ground that the Finance Act, 2004 was not specified in the Notification. 4. The controversy before us centres around the interpretation of the provisions of Section 93 of Chapter VI of the Finance Act, 2004, which provides for levy and collection of Education Cess on excisable goods which was in the nature of excise duty, at the rate of 2% calculated on the aggregate of all duties of excise including special duty of excise or any other duty of excise, which are levied and collected under the provisions of the Central Excise Act, 1944 or under any other law for the time being in force, by the Central Government in the Ministry of Finance. 4.1  The Commissioner (Appeals) in all these matters took the view that in the absence of specific mention of the Education Cess in the nature of excise duty in the said Notification No. 56/2002, refund of Education Cess was not admissible to all these appellants in terms of the said Notification. Referring to the Notification No. 40/2001 dated 26-6-2002 which related to rebate of duty on excisable goods, which Notification was superceded by Notification No. 19/2004 dated 6-9-2004, and noticing that Education Cess on....
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....lating to levy of Education Cess which was in the nature of excise duty was not incorporated in the said Notification which exempted duties only in respect of the three Acts named therein. It was also argued that, in view of the exemption under the said Notification in respect of the duties payable under the three Acts named thereunder, no Education Cess was payable under the provisions of Section 93. It was, therefore, submitted that, Education Cess would not have been recoverable in connection with the duties which were exempted under the said Notification on its conditions being satisfied. 6. Levy and collection of excise duty is provided for in Chapter II of the Central Excise Act, 1944. The expressions "Duty, Duties, Duty of Excise and Duties of Excise" are required to be construed by including a reference to Central Value Added Tax, as provided in Section 2A of the said Act. A duty of excise, which is to be called as Central Value Added Tax (Cenvat), on all excisable goods which are produced and manufactured in India, is to be levied and collected in such manner as may be prescribed under the Rules on all the excisable goods in the First Schedule to the Tariff Act. Simi....
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....ich it is reguired to be calculated is itself exempted, automatically, no question of levy of the said Education Cess in the nature of excise duty can ever arise. There was, therefore, no need to incorporate the provisions of Chapter VI of Finance Act, 2004 in the said Notification. The reasoning of the Commissioner (Appeals) that because Education Cess in the nature of excise duty which can be levied and collected under Section 93 did not find place in the said Notification which referred to only the aforesaid three Acts proceeds on an erroneous footing, in view of the fact that there is no separate scheme of exemption from Education Cess in the nature of excise duty contemplated in the provisions of Chapter VI of the Finance Act, 2004 nor does such requirement flow from any of the three Acts in respect of which duty exemption has been granted under the said Notification. 7. The contention raised on behalf of the Revenue that, since for availing the benefit of the said Notification, the manufacturer was required to pay duty on goods cleared, after having exhausted the Cenvat Credit, in cash or through PLA, it should be treated as duty levied and collected, though....
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.... added] 7.1 We may also incidentally refer to the clarification issued by letter dated 10th August, 2004 by the Ministry of Finance on the question, whether the goods that are fully exempted from excise duty/customs duty, would be subjected to Education Cess. It was clarified in answer to issue no. 2 that if the goods are fully exempted from excise duty and are chargeable to NIL duty, there is no collection of duty and, therefore, no Education Cess would be leviable on such clearances. 7.2 Therefore, once the entitlement to exemption of the duty of excise or additional duty of excise, which would otherwise be payable under the three Acts named in the Notification, is established by following the manner indicated in paragraph 2 for ascertaining the extent exemption, there cannot arise any question of imposing Education Cess in the nature of excise duty under Section 93. 8. The ground for rejecting the claim for refund of Education Cess in the nature of excise duty paid at the rate of 2% on the portion of excise duties which were exempted, given by the Commissioner (Appeals) and adopted by the Learned Authorized Representatives for the Department, that there was no ....