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TaxTMI 
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TaxTMI 
2018 (11) TMI 1374
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....dingly, show cause notices were issued demanding Tea cess with interest on the grounds that exemption from payment of cess is applicable only to 100% EOU. After due process of law, the original adjudicating authorities inter alia, confirmed various amounts of Tea cess with interest as proposed in the corresponding SCNs. In appeal, the Commissioner (Appeals) vide common impugned order upheld the orders of original authority and rejected the appeal. Hence appellants are before this forum. 3. When the matter came up for hearing, on behalf of the appellants Ld. Advocate Shri K. Sankaranarayanan made various oral and written submissions which can be broadly summarized as under: i) Under Rule 19 of the Central Excise Rules any excisable goods may be exported without payment of duty from a factory of the producer or the manufacturer under sub rule 3 of Rule 19. Notification No.42/2001 CE (NT) dt.26.06.2001 had been issued which specified procedure for export under bond without payment of duty. ii) Tea cess is nothing but duty of excise and therefore as per Rule 19 (1) the goods under export are not required to pay any duties including Tea Cess. iii) The Ld. Advocate draws our attentio....
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....44, none of the duties is chargeable under any Act of Parliament which provides that in relation to levy and collection of such duty, the provisions of the Central Excise Act and the Rules made thereunder, shall as far as may be, apply or is payable on export of goods under bond. Apart from duties under the Central Excise Act, certain other duties of excise, NCCD, Education cess etc. have been given as examples. Accordingly, on this ground also, in the said 37B Order, the word „inter alia‟ was used which means "among other things" Therefore although cess is collected as duty of excise it is not explicitly mentioned in the Section 37B Order and the substantive benefit normally available to exporter should not be denied. vii) Ld. Advocate inter alia relies upon the ratio of the following decisions : 1) TVS Motor Co. Ltd. Vs Union of India 2015 (323) E.L.T. 57 (Kar.) 2) ITC Ltd. Vs CCE New Delhi 2004 (171) ELT 433 (SC) 3) UOI Vs Dharmendra Textile Processors 2008 (231) ELT 3 (SC) 4) TATA Consultancy Services Vs State of Andhra Pradesh 2004 (1780 ELT 22 (SC) 4. Ld. A.R Shri K. Veerabhadra Reddy supports the impugned order. He points out that against one Order-in-Appea....
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....licable. Hence for these reasons we are of the firm conclusion that the exemption granted to EOUs vide the above notification cannot be used in support of proposition that by implication export made by DTA units will be exigible to Cess. 6.4 In our view, the Order No.60/1/06-CX dt. 13.1.2006 issued under Section 37B of the Central Excise Act, 1944 would have to be looked into for answers to the imbroglio. In the said Order, the Government in the first paragraph itself states that the orders instructions and directions in the Order have been issued for the purpose of uniformity with respect to levy of duties of excise of goods exported under bond under Rule 13 of the Central Excise Rules, 1944, Rule 19 of the CER 2005 and Rule 19 of the CER 2002. The order has taken note of demands being issued by field formations over non collection of some duties such as AED SED of motor spirit and HSD etc. For the sake of ready reference, the said Section 37B order is reproduced below : "Export of goods under bond - Non levy of duties of Excise - Clarifications Section 37B Order No.60/1/2006-CX., dated 13-1-2006 F.No.232/16/2004 (Part-II) CX.7 Government of India Ministry of Finance (Depa....
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....No.209/41/2004-CX.6) (Pt.II)] [20051(80) E.L.T.T23] (v) Objections over non-payment /non-collection of some of the said duties, such as Additional Duty of Excise (AED) and Special Additional Excise Duty (SAED) on Motor Spirit (MS) and High Speed Diesel Oil (H.S.D.) and Education Cess and National Calamity Contingent Duty (NCCD) on various goods are still being raised and demands are being issued by the field formations in pursuance thereof or otherwise. This is causing hardship to the exporting community and may adversely affect country's exports. To put an end to the uncertainty for the trade and industry and to bring in clarity , the Board, for the purpose of uniformity with respect to levy of duties of excise, hereby orders that as per rule 19 of the Central Excise Rules, 2002, rule 19 of the Central Excise Rules, 2001 and rule 13 of the Central Excise Rules, 1944, none of the duties chargeable under any Act of Parliament which provides that in relation to levy and collection of such duty, the provisions of the Central Excise Act and the rules made thereunder, shall, as far as may be, apply; was/is payable on export of goods under bond. Such duties, inter alia, include the foll....
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....rd's Order to conclude that only Education Cess is not required to be paid on tea cleared for export, but that Tea Cess by itself is very much payable since there is no notification from the Ministry of Commerce exempting Tea Cess on tea exported. Ld. Adjudicating authority relied on earlier circular No.48/88-CX.8 dt. 12.09.1988 to buttress his stand. 6.6. We are not able to appreciate these conclusions. The Section 37B Order dt. 13.1.2006 clearly states that "Past instructions, Circulars and Orders on the issue may be considered as suitably modified". From the facts on record, there has been no instruction or order etc. issued earlier to 13.01.2006 to the effect that Tea Cess being duty of excise is required to be collected in respect of exports made by DTA units, such as the appellants. In any case, even if there had been any such instruction, that would obviously have got nullified by the said 37B order dated 13.01.2006. An argument has also been made by the lower authority that para (v) of Section 37B Order dt. 13.1.2006 does not specifically list or incorporate Tea Cess levied under Tea Act, 1953. In this regard, it is pertinent to note that the said para (v) has only given i....
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....ving at that conclusion, the adjudicating authority has relied upon the aforesaid Section 37B Order dt. 13.1.2006. From the facts on record, it does not appear that the said adjudication order passed by the same Commissionerate in respect of the same appellants herein has been appealed against by the department. The Hon'ble Supreme Court in the case of Marsons Fan Industries Vs CCE Calcutta 2008 (225) ELT 334 (SC) has inter alia held that department accepting its earlier order pertaining to the same assessee has attained finality. The relevant portion of the said judgement is reproduced as under: "3. Mr. Joseph Vellapally, learned senior counsel appearing for the appellant has brought to our notice that in a case pertaining to earlier period from February 1982 to December 1982 of the assessee, the Collector (very same officer) in Order (Original) No. 61 (30-D) 87-Collr. 57/89, dated 21st July 1989 took the view that rotors and stators were incomplete and were unfinished goods not known in the market as stators and rotors. He also states that the subsequent order dated 21st July 1989 was brought to the notice of the Tribunal but the Tribunal did not take note of it. In support of h....