2015 (9) TMI 399

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....) Mumbai. 3) This appeal has been admitted on the following substantial questions of law. (a) Whether the CESTAT is vested with powers or has jurisdiction to hold and declare that notification/circulars issued by the Board are inconsistent to legislature? (b) Whether Education Cess is leviable on imports made under DEPB Scheme as per Finance (No.2) of 2004 read with Board's Circular NO.5/2005 dated 312/1/2005? 4) The Counsel appearing for both sides have addressed us on Question 2(b). In their submission, same would suffice for disposal of this appeal. 5) The respondent-assessee filed about 16 bills of entries for the purpose of assessment of various goods imported by them and claimed benefit of Notification No.45/02/Cust....

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....ification, the exemption operates by allowing duty credit in the Duty Entitlement Pass Book on exports at the rate specified and subsequently by debiting an amount equal to duty payable, against such credit in the pass book, on imports., As such, such crediting and debiting of duty amounts is a matter of procedure and convenience, but the notification basically provides full exemption from customs duty. Our view is supported by earlier decision of the Tribunal in Essar Steel Ltd. vs. CCE, Vishakhapatnam-2004 (173) E.K.T. 239(Tri.) wherein it was held that modvat credit against DEPB debits cannot be allowed as duties are exempted under DEPB scheme and the relevant notification." We find that the provisions in the said Finance Act specify ....

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....ed and recovered. The Tribunal's view is therefore, erroneous in law. 10) On the other hand, Mr. Patel appearing on behalf of the respondent assessee submits that the Tribunal's view as taken above has found favour at least with three High Courts in India and in that regard he invites our attention to the judgment of High Court of Gujarat in the case of Gujarat Ambuja Exports Ltd. vs. Government of India 2013 (289) E.L..T. 273 (Guj.) and Commissioner of Customs vs. Pasupati Acrylon Ltd. 2013 (296) E.L.T. 182 (Guj.) He submits that the view taken by Gujarat High Court in Pasupati (supra) has been not interfered with by the Hon'ble Supreme Court and the revenue's appeal is dismissed on 8 May 2013. 11) The Tribunal's ....