TaxTMI 
TaxTMI 
2013 (12) TMI 695
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....(3) of section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957) and sub-section (3) of section 3 of the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the goods specified in the First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), other than goods specified in Annexure I appended hereto, and cleared from a unit located in the Industrial Growth Centre, Industrial Infrastructure Development Centre or Export Promotion Industrial Park or Industrial Estate or Industrial Area or Commercial Estate, or Scheme Area, as the case may be, specified in Annexure - II appended hereto, from so much of the duty of excise or additional duty of excise, as the case may be, leviable thereon under any of the said Acts as is 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 the CENVAT Credit Rules, 2002. 2. The exemption contained in this notification shall be given effect to in the following ....
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....dditional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978). 6. By Section 91 Finance Act, 2004 Educational Cess of 2% was levied as 2% as aggregate of all duties excise and by section 136 of Finance Act 2007 a Higher Educational Cess equal 1% of the aggregate of all duties excise were imposed. The short question before the Tribunal in these appeals is whether the exemption will extend the new levies imposed by Finance Act 2004 and Finance Act, 2007. The appellant had filed refund applications for Education Cess and Higher Education Cess paid through cash during different period which refund applications stand rejected on the ground that the exemption under the said notification does not extend to Education Cess and Higher Education Cess. The appellant has appealed against such rejection orders of the lower authorities. 7. The Counsel for appellant submits that both Education Cess and Higher Education Cess are collected as duties of excise. These Cesses are collected as a percentage of the aggregate of duties of excise leviable on the goods. When other excise duties are exempted the Cess which is an appendage to the exempted duty cannot be levied. So the pro....
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....sel also further points out that there are two decisions of the Tribunal directly dealing with refund under notification 56/2002-CE in favour of the assessee. These are,- (i) Cyrus Surfactants Pvt. Ltd Vs. CCE-2007 (215) ELT 55 (Tri-Del) ; (ii) Bharat Box Factory Ltd Vs. CCE-2007 (214) ELT 534 (Tri-Del). 10. Thereafter he points the Tribunal cannot take a different view without constituting a larger bench to reconsider the issue. He relies on the observation of the Apex Court in para 24 of the decision in Gammon India Ltd Vs. CCE (sic) - 2011 (269) ELT 289 (SC) and emphasizes the need to follow judicial discipline. 11. The Ld AR for Revenue on the other hand points out that exemption is only a partial exemption for duty paid through cash and there is no exemption for duty paid through Cenvat Credit. Further the exemption is very specific as to the types of excise duties which are exempt which are only three. There are many other levies collected by the Central Excise department as excise duty like National Calamity Contingent Duty imposed under Finance Act, 2001, Duty under Medicinal and Toilet Preparation Act, 1955, different types of Cesses like Cess....
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.... 15. The decision in the case of Sunagar Bros. (supra) was also with reference to a procedural matter of pre-deposit of tax, pending appeal. Further the dispute was about surcharge levied through another section of the very same Act which had the provision regarding pre-deposit and not about a levy by a different enactment as in this case. So this decision also has no relevance to the dispute at hand. 16. We note that the exemption is not for the whole of the three duties levied. It is only for part of it. Secondly it is not for all duties collected as excise duty but only for three specified duties. The fact that Education Cess is calculated as percentage of the aggregate of all excise duties cannot give Education Cess the same character as the other levies. The three levies dealt in the notification have distinct character and purposes. A new levy like Education Cess cannot at once take the nature of many levies. So the argument that Education Cess has the same nature as other excise duties exempt has no meaning. It is relevant that the notification was issued in the year 2002. At that time excise duty under Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 w....
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....002-CE specifically exempts only the duties levied under Section 3(1) of Central Excise Act, 1944 and the Additional Excise Duties levied under AED (GSI) Act, 1957 and AED (T&TA) Act, 1978, there is no scope for doubt that this notification would not cover the education cess levied under Section 91 read with Section 93 of Finance Act, 1994 (sic 2004). We find that same view had been taken by Hon'ble Guwahati High Court in the case of CCE, Shilling Vs. Dharampal Satyapal Ltd. (supra), wherein Hon'ble High Court held that Notification No.32/1999-CE dated 8.7.99 (which is similar to Notification No.56/2002-CE) does not exempt the education cess. Earlier Hon'ble Guwahati High Court in the case of CCE, Shilling Vs. Dharampal Satyapal Ltd. (supra) {judgment dated 29.6.11 in respect of reference application No.4/2008} had held that Notification No.32/1999-CE does not exempt the NCCD {National Calamity Contingent Duty} leviable under Section 136 of Finance Act, 2001 which is also levied by the way of surcharge as a duty of excise. In view of the judgments of the Apex Court and Hon'ble Guwahati High Court on the issue involved in this case, there is no need to refer the issue to a Larger Be....
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....t of the two Benches of the Tribunal deciding appeals in the cases of IVRCL Infrastructures & Projects Ltd. (supra) & Techni Bharathi Ltd. (supra). After noticing the decision of a co-ordinate Bench in the present case, they still thought it fit to proceed to take a view totally contrary to the view taken in the earlier judgment, thereby creating a judicial uncertainty with regard to the declaration of law involved on an identical issue in respect of the same Exemption Notification. It needs to be emphasised that if a Bench of a Tribunal, in identical fact-situation, is permitted to come to a conclusion directly opposed to the conclusion reached by another Bench of the Tribunal on earlier occasion, that will be destructive of the institutional integrity itself. What is important is the Tribunal as an institution and not the personality of the members constituting it. If a Bench of the Tribunal wishes to take a view different from the one taken by the earlier Bench, the propriety demands that it should place the matter before the President of the Tribunal so that the case is referred to a Larger Bench, for which provision exists in the Act itself. In this behalf, the following obser....
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....ntry shall follow the observations made by the Hon'ble Supreme Court in the case of Sub-Inspector Rooplal. As such I am of the view that the matter need to be referred to Larger Bench for consideration of the earlier decision of the tribunal and to resolve the issue relating to two contra declarations of law by two benches. 25. Apart from above I note that the Tribunal's decision in the case Cyrus Surfactants Pvt. Ltd. was taken by Division Bench and apart from taking note of various Supreme Court's decision, the bench also referred to a clarification issued by the ministry laying down that where goods are fully exempted from excise duty and there is no collection of duty, no education cess, would be leviable on such clearances. Learned advocate appearing for the appellant has also relied upon various other decisions laying down that cess being part of duty and where duty is not being collected (may be by the mechanism of refund) the cess would not be payable. As such I am of the view that the issue is not free from doubt and their being decisions on both the sides, it is appropriate and proper to refer the matter to the Larger Bench for its considered opinion. I make it clear tha....
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....2007 (214) ELT 534 (Tri.-Del.) 30. Ld. Advocate submits that decisions of this Tribunal mentioned at Sr. No. 3 and 4 are on the same issue in connection with same notifications and Tribunal cannot take different stand without referring the matter to Larger Bench and in support of this contention he relies on the following decisions :- 1. M/s Gammon India Ltd. Vs. CCE - 2011 (269) ELT 289 (SC) . 2. Sant Lal Gupta & Ors. - MANU/SC/0859/2010 3. Tribhuvandas Purushottamdas Thakur - MANU/0345/1967 4. S.I. Rooplal & Anr. - MANU/SC/0776/1999 These decisions are on issue of following the precedence of decisions of Coordinate Benches. 31. Ld. Authorised Representative Sh. Sanjay Jain on the other hand submits that Notification No. 56/2002 exempts duties mentioned in notification i.e duty of excise leviable under Central Excise Act. Additional Duty of Excise (Goods of Special Importance) Act and Additional Duties of Excise (Textile and Textile Article) Act and not Education Cess or Higher Education Cess. He submits that these cesses were not even leviable when the Notification No. 56/2002 was issued as these cesses were levied in Fin....
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....ble to education cess levied under Section 91 readwith Section 93 of Finance Act, 2004. Though, the Tribunal in the case of Bharat Box Factory Ltd. v. CCE, Jammu (supra) and Cyrus Surfactants Pvt. Ltd. v. CCE, Jammu (supra) had taken a contrary view, we find that in these judgments of the Tribunal, the Apex Court's judgment in the case of Union of India v. Modi Rubber Ltd. (supra) has not been considered. In the case of Union of India v. Modi Rubber Ltd. (supra), the Apex Court had held that the words "duty of excise" in the Notification No.123/74-C.E., dated 1-8-1974 and 27/81-C.E., dated 1-3-1981 issued under Rule 8(1) of Central Excise Rules, 1944 (corresponding to Section 5A of Central Excise Act, 1944) would not cover the Special Excise duty leviable under Finance Act, 1978 and AED (GSI) levied under AED (GSI) Act, 1957. In our view, when the Notification No.56/2002-C.E. specifically exempts only the duties levied under Section 3(1) of Central Excise Act, 1944 and the Additional Excise Duties levied under AED (GSI) Act, 1957 and AED (T & TA) Act, 1978, there is no scope for doubt that this notification would not cover the education cess levied under Section 91 readwith Section....