TaxTMI 
TaxTMI 
2016 (6) TMI 868
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....-Cus dt. 04/10/2005 by which the duties (BCD, CVD &SAD) were paid by debiting the DEPB license. They then availed credit of the duties including the Education Cess and Secondary Higher Education Cess. A show-cause notice was issued raising the allegation that as per Notification No.89/2005-Cus. dt. 04/10/2005, the credit of CVD amount debited can be allowed, but as regards Education Cess and Secondary and Higher Education Cess, there is no provision in the notification for availing the credit of such amount debited in the DEPB certificates. That therefore the appellants have availed irregular credit of both Education Cess and Secondary Higher Education Cess which is not admissible. After due process of law, the adjudicating authority confir....
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....ess and Secondary and Higher Education Cess. That the budget Circular dt. 08/07/2004 clarifies this position. As per the illustration given therein, the rate of CVD applicable on the imported goods is the rate of basic excise duty inclusive of Education Cess and Secondary & Higher Education Cess payable thereon. That the findings of the authorities below that excise duty leviable on like article mentioned in Section 3(1) of Customs Tariff Act, 1975, refers only to basic excise duty is incorrect. That the said section refers to excise duty leviable on like article produced or manufactured in India. This can only mean that such duty is inclusive of the Cess applicable thereon. That whatever duty paid as additional duty leviable under Section ....
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....rival submissions and perused the records carefully. The payment of additional duty of excise (CVD) is governed by sub-section (1) of Section 3 of Customs Tariff Act, 1975 and the exemption from this duty in import of goods is contained under Notification No.89/2005. The main contention of Revenue is that in Notification No.89/2005-Cus. dt. 04/10/2005, though credit on CVD is allowed, it does not mention anything about Education Cess payable as part of CVD. For better appreciation, Section 3(1) of Customs Tariff Act, 1975 is reproduced as under:- Section 3. Levy of additional duty equal to excise duty, sales tax, local taxes and other charges. (1) Any article which is imported into India shall, in addition, be liable to a ....
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....n all the above duties of excise except Education Cess in (f). The above would show that the rate of CVD applicable on the imported goods is the rate of total duties of excise which is inclusive of Education Cess and Secondary and Higher Education Cess payable on the aggregate of the other duties of excise. Therefore the contention of the appellants that Education Cess and Secondary & Higher Education Cess payable on that part of CVD which is equal to the basic excise duty is a part of CVD itself is not without substance. 5. The Tribunal while considering the exemption under Notification No.23/2003-CE (S.No.2) and the eligibility of credit on Education Cess thereunder, in the case of CCE, Chennai Vs. Jumbo Bags Ltd. [2013(296) ELT 142....
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....credit is not admissible. The learned counsel for appellant pointed out that as per Circular No.5/2005-Cus dt. 31/01/2005, it is clearly provided that Cess could also be debited from DEPB Scrip. 7. The Tribunal in the case of Seshasayee Paper and Boards Ltd. Vs. CCE, Salem [2007(217) ELT 562 (Tri. Chennai)] and [2008(223) ELT 626 (Tri. Chennai)] had occasion to consider the issue whether the importer was entitled to take CENVAT credit of the amount debited in DEPB towards payment of CVD. The Tribunal rejecting the contention of the Revenue that as per CENVAT Credit Rules, what was allowed was only credit of duty paid in cash , held that the importer was eligible for credit on the duty paid by debit in DEPB. Similar view was taken in Inte....