TaxTMI 
TaxTMI 
TaxTMI 
2016 (10) TMI 829
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.... 91 read with Section 93 of the Finance Act, 2004 and Section 136 read with Section 138 of the Finance Act, 2007, being the cess as per Section 15(1) of the Oil Industries (Development) Act, 1974, is said to be not levied and collected by the Ministry of Finance (Department of Revenue)?" Admit. With consent of counsel for the parties, the appeal is heard for final disposal at this stage. This appeal, under Section 35-G of the Central Excise Act, 1944, is before us to examine correctness of the order dated July 24, 2014, passed by the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as 'the Tribunal'), New Delhi in Appeal No.E/59688/2013-EX(DB). By the order aforesaid learned Tribunal set aside the order dated May 8, 2013, passed by the Commissioner of Central Excise (Appeals), Jaipur-II, while arriving at the conclusion that in terms of the provisions of Section 91 read with Section 93 of the Finance Act, 2004 and Section 136 read with Section 138 of the Finance Act, 2007, for the purpose of charging education cess and secondary and higher education cess, the excise duty would include only those cess as duty of excise which are levied by the ....
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....f Revenue, from only those aggregate duties of excise which are levied and collected by this department; 2. the empowerment of levy cess on production of crude oil is with the Ministry of Petroleum derived from the provision of the Oil Industries (Development) Act, 1974; and 3. the mandate of the Department of Revenue is only with regard to collection of cess on production of crude oil from the subject parties and in the absence of power to levy and collect the cess on production of crude oil, the Department of Revenue cannot levy and collect education cess and secondary and higher education cess. The Additional Commissioner, Central Excise, under the order dated 28.3.2011, after examining the defence extended by the company, held that the education cess levied under Section 93 of the Finance Act, 2004 and secondary and higher education cess levied under Section 137 of the Finance Act, 2007, are chargeable on oil cess as it is also in the nature of duty of excise, therefore, the charge raised against the company stands proved. Accordingly, the demand was confirmed. An appeal preferred by the company, giving challenge to the order passed by the Additional Commissioner, Central....
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....ivating the argument advanced on behalf of the revenue, held that the education cess is leviable at the prescribed rate on the aggregate of all duties of excise and, therefore, would also include the cess levied and collected under the provisions of Sugar Cess Act, 1982. The observations and findings arrived by the Gujarat High Court are as under:- 6. Under Section 3(1) of the Cess Act, a provision is made for imposition of cess and it is specifically provided that "There shall be levied and collected as a cess". Meaning thereby, the levy and collection is of a cess for the purposes of the Sugar Development Fund Act, 1982. Thereafter, the provision goes on to state, what should be the rate at which the cess is to be levied and for sake of convenience, the same is described as duty of excise. In the event it was a central excise duty, as contended, the rate would have been provided in the Tariff Act and not in this provision. 7. Similarly, when one reads sub-section (2) of Section 3 of the Cess Act, it becomes clear that what is levied under sub-section (1) is in addition to the duty of excise leviable on sugar under the Central Excise Act, 1944, or any other law for the time be....
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....e present, it is not necessary to consider other provisions of the Sugar Development Fund Act, 1982 relating to application of the sugar development fund etc. Suffice it to state that the Cess Act and the Sugar Development Fund Act both have been brought on the statute book simultaneously on the same day and operate as a consolidated scheme and the provisions of both the Acts have to be read together. On such conjoint reading, it is apparent that a plain reading by itself would indicate that the sugar cess levied and collected cannot be equated with duty of central excise and therefore, cannot be treated to be part and parcel of the amount on which education cess has to be calculated." Before us, while questioning correctness of the order passed by the Tribunal, the arguments advanced by learned counsel for the appellant are that- 1. the Tribunal erred while relying upon the law laid down in the case of Commissioner v. Sahakari Khand Udyog Mandi Ltd., as in the case aforesaid the Gujarat High Court was dealing with the provisions of Sugar Cess Act, 1982, whereas in the case in hand the oil cess is made applicable as per Section 15 of the Oil Industries (Development) Act, 1974. T....
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.... with the technological demands of industry and the expanding universe of knowledge. There is only one benchmark for our technicians - and that is the world standard. In order to produce technicians of world standard, Government proposes to launch a programme in the Central sector to upgrade 500 ITIs over the next 5 years at the rate of 100 ITIs a year. Appropriate infrastructure and equipment will be provided, the syllabi will be upgraded and new trades will be introduced. This is an area where I welcome Chambers of Commerce and Industry to join hands with the Government and create a public-private partnership model for designing and implementing the scheme. The selection of the ITIs will be cone in consultation with the State Governments. 24. An education loan scheme has been in operation since April 2001 under which loans up to Rs. 7.50 lakh and Rs. 15 lakh are available for professional courses within the country and abroad, respectively. The requirement of collateral was dispensed with for loans up to Rs. 4 lakh. I am happy to say that commercial banks have now agreed to waive the need for collateral for loans up to Rs. 7.5 lakh, if a satisfactory guarantee is provided on be....
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.... be." Under the Finance Act, 2007, this legislature introduced secondary and higher education cess as per Sections 136 and 138, which are as under:- "136. Secondary and Higher Education Cess.-- (1)Without prejudice to the provisions of sub-section (12) of section 2, there shall be levied and collected, in accordance with the provisions of this Chapter as surcharge for purposes of the Union, a cess to be called the Secondary and Higher Education Cess, to fulfil the commitment of the Government to provide and finance secondary and higher education. (2)The Central Government may, after due appreciation made by Parliament by law in this behalf, utilise, such sums of money of the Secondary and Higher Education Cess levied under sub-section(12) of section 2 and this Chapter for the purposes specified in sub-section(1) as it may consider necessary." "138. Secondary and Higher Education Cess on excisable goods.-- (1)The Secondary and Higher Education Cess levied under Section 136, in the case of goods specified in the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1985), being goods manufactured or produced, shall be a duty of excise (in this section referred to as the Seco....
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....Act of 2004 in quite unambiguous terms provides that the words and expressions used in Chapter VI of the Act of 2004 and defining the Central Excise Act, 1944, the Customs Act, 1962 or Chapter V of the Finance Act, 1994, shall have the meaning respectively assigned to them in those Act or Chapter, as the case may be. The legislature, if was intending to include the Act of 1974 also in it, then a specific reference of that should have been given, but that is absent, which clearly indicates the intent of legislature to exclude the application of education cess on the excise duties referred under Section 15 of the Act of 1974. The cess in question has been introduced under the Finance Act, 2004 and the Finance Act, 2007. Under the Act of 2004, it is in the name of Education Cess, whereas under the Act of 2007, it is termed as Secondary and Higher Education Cess. Under the Act of 2004 as well as under the Act of 2007 the cess is required to be treated as a duty of excise @ 1%, calculated on the aggregate of all duties of excise which are levied and collected by the Central Government in the Ministry of Finance (Department of Revenue) under the provisions of the Central Excise Act, 194....
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....the provisions of Sugar Cess Act, 1982 and the Sugar Development Fund Act, 1982, the enactments introduced simultaneously. Under the Sugar Cess Act, 1982, the cess was introduced only to have a fund as per provisions of Sugar Development Fund Act, 1982. The relevant discussions in this regard is made by the Division Bench of Gujarat High Court in para 10 of its judgment, which is already quoted in preceding paras. In the instant matter we are examining provision of Section 15(1) of the Act of 1974, and on its perusal, that appears to be para-materia to Section 3 of the Sugar Cess Act, but it is not so. The Sugar Cess Act, 1982 provides for cess with a purpose of the Sugar Development Fund Act, 1982, as a duty of excise on all sugar produced at any sugar factory in India and further Section 4 of the Sugar Cess Act, 1982 pertains to crediting of sugar cess proceeds to consolidated fund of India. There is no provision akin to Section 4 of the Sugar Cess Act, 1982 and absence of such a provision changes the complete complexion of Section 15 of the Act of 1974. Pertinent to notice that under the Act of 1974, as per Section 16, the duty of excise levied shall be first credited to the co....
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....t of 1974 is administered by the Ministry of Petroleum and Ministry of Finance (Department of Revenue) is only a collecting agency, as such, the same cannot be a subject for education and secondary and higher education cess. We do not find any merit in the arguments advanced. A plain reading of the provisions of Section 93 of the Act of 2004 and Section 138 of the Act of 2007 makes it abundantly clear that education cess/secondary and higher education cess can very well be levied and collected by the Central Government in the Ministry of Finance (Department of Revenue) under the provisions of the Central Excise Act, 1944 or under any other law for the time being in force. The respondent is subjected to a cess under the Act of 1974, a law in force at the time of enforcing the Act of 2004 and the Act of 2007. A Division Bench of Gujarat High Court in the case of Commissioner v. Sahakari Khand Udyog Mandi Ltd., while examining provisions of the Sugar Cess Act, observed that a legislature adopted the legislative procedure given under the Central Excise Act, 1944 to collect levy as per Sugar Cess Act, but due to that it cannot be inferred or stated that the Sugar Cess imposed under th....