TaxTMI 
TaxTMI 
2018 (5) TMI 1356
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.... was clearing the goods in DTA and was not paying education cess and higher education cess on the duty of excise as determined under the proviso to Section 3(1) of the Central Excise Act, 1944. A show cause notice was issued to the appellant demanding education cess and higher education cess on the duty of excise leviable under the aforesaid proviso for the third time after the appellant had paid education cess already on two occasions, first on the CVD and second as cess leviable on Customs duty. The matter was adjudicated and the demand of Rs. 2,81,187/- was confirmed along with interest and penalty of equivalent amount was also imposed under Section 11AC of the Act. In appeal, the Commissioner (Appeals) upheld the order of adjudicating a....
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....e for deemed exports. It is not possible to say that it is export is for all intents and purposes. None of the benefits referred to is provided for in the Customs Act, 1962 or in the Central Excise Act, 1944. Such supply will not be for the purpose of this Act be deemed to be exports. Thus the drawback under Section 74 or 75 ibid will not be available. We do not find the decision relevant in the present context. In the case of 100% EOUs, when goods are cleared to 100% EOU it is deemed export; when a 100% EOU imports goods, no customs duty is charged because a 100% EOU is treated as a customs bonded warehouse; when a 100% EOU clears the raw materials imported, it is required to pay the customs duties if the clearance is to domestic tariff ar....
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....of Central Excise Act, 1944 is to arrive at aggregate of customs duties and once we take a view that education cess is part of the customs duty and is an enhancement, the question of adding it again does not arise." The above issue has also been decided by the Larger Bench of this Tribunal in the case of Kumar Arch Tech Pvt Ltd (supra), wherein this Tribunal has concluded as under:- "10. However, we are not in agreement with the stand of the Revenue for another reason. The charging provisions of education cess and S&H cess are Section 91 of the Finance Act, 2004 and Section 136 of the Finance Act, 2007 respectively according to which, this levy is a „cess‟ levied as surcharge to enable the Central Government to finan....
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....e levied as surcharge, would not include the education cess and S&H cess. Thus, the intention of the legislature was never to charge education cess on education cess. In fact this is not permissible from very mode of this levy as prescribed in Section 91 of the Finance Act, 2004 and Section 136 of the Finance Act, 2007, as when a new tax is introduced as surcharge on the existing levies, the base on which the new levy as surcharge is to be calculated will include only the existing levies, not the new levy. If the Revenue‟s stand is accepted, and on the sum of Basic customs duty and Addl. Customs duty, first "cess on imported goods" under Section 94 of Finance Act, 2004 and Section 139 of Finance Act, 2007 is charged as duty of customs....