2019 (12) TMI 845

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.... of Central Excise & Service Tax, Belapur. 3. Briefly stated the facts of the case are that the appellant is a 100% EOU engaged in the manufacture of Phthalic Anhydride and cleared the said product to DTA as per provisions of Section 3(1) of the Central Excise Act, 1944, 1944 read with Notification No. 23/02- CE dated 31.3.2003. Alleging that the appellant had incorrectly calculated the Education Cess and Higher Education Cess payable on the excise duty amounting to Rs. 2,80,24,739/- during the period July, 2004 to August, 2005, notice was issued to them on 19.02.2009 for recovery of the said amount with interest and penalty. On adjudication, the learned Commissioner dropped the proceedings against the appellant. Aggrieved by the said or....

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.... discussed above, though education cess and S&H cess being cess to enable the Government to finance its expenditure on providing basic education and secondary and higher education, is a levy different and distinct from the tax on which it is levied as surcharge, the mode or measure of this levy is surcharge at the rate of 2% and 1% on the existing levies i.e. the taxes being collected by the Government as - (a) Central excise duties under Central Excise Act, 1944 or any other law in force; (b) customs duties under Customs Act, 1962 read with Customs Tariff Act, 1975 or any other law in force; and (c) Service tax levied under Section 66 of the Finance Act, 1994. Since the cess levied as surcharge under Sec....

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....amount to charging education cess on education cess for which there is no sanction in law. Apex Court in case of Jain Brothers v. U.O.I., reported in (1970) 77 ITR 107 has held that there can be no objection for double taxation if the legislature has distinctly enacted it, but while interpreting general words of taxation, the same cannot be so interpreted as to tax the subject twice over to the same tax. In our view, it is this principle which has to be kept in mind while calculating education cess and S&H cess on DTA clearances of a 100% EOU. Since the DTA clearance of a 100% EOU attract central excise duty and in terms of proviso to Section 3(1) of Central Excise Act, 1944, the measure of the excise duty leviable is aggregate of duties of....