TaxTMI 
TaxTMI 
2022 (10) TMI 500
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....s of Tobacco. Aggrieved by the imposition of Excise Duty and National Calamity Contingent Duty (NCCD) on the tobacco products being manufactured and sold, the instant writ petitions are filed. 2. Prior to passing of the Central Good and Services Act, 2017 (hereinafter referred to as the 'CGST Act, 2017', for brevity), tobacco products were being taxed under the provisions of the Central Excise Act, 1944 read with Central Excise Tariff Act, 1985. With coming into effect of CGST Act, 2017, by virtue of Section 174 of the said Act, the Central Excise Act, 1944, except in respect of goods included in entry 84 of the Union List of Seventh Schedule of the Constitution of India, has been repealed. Further, the Central Excise Tariff Act, 1985 also has been repealed. 3. Entry 84 of the Seventy Schedule of the Constitution of India deals with, apart from other things, duties of excise on tobacco and tobacco products. Thus, apart from levy of taxes under the provisions of CGST Act, 2017, excise duty can be levied on tobacco and tobacco products under the Central Excise Act, 1944. 4. Further, Section 136 of the Finance Act, 2001 contemplates levy of NCCD. Section 136 of Finance Act....
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....y other appropriate Writ direction, order quashing the Notification No. 3 of 2019, dated 06.07.2019, issued by the First Respondent, purporting to exercise power under Section 5 (A) of Central Excise Act, 1944, levying Central Excise on tobacco and tobacco products. A copy of the said Notification is produced herewith as Annexure 'A'; b. Declare that no excise duty under the Central Excise Act, 1944 is payable on the goods manufactured by the Petitioner namely tobacco and tobacco products; c. Declare the Repeal and Saving provision of Section 174 of the Central Goods and Service Tax Act, 2017, insofar as it seeks to save the operation of the Central Excise Act, 1944, qua tobacco and tobacco products, as unconstitutional and bad in law; d. Declare and hold that Section 136 of the Finance Act, 2001, under which there is a levy and collection of NCCD, is impliedly repealed w.e.f. 01.07.2017, i.e. the date on which the Central Goods and Service Act, 2017 came into effect. e. Declare that the Respondents are not entitled to collect NCCD and direct for the refund of the NCCD collected by the Respondents, from the Petitioner; f. Forbear....
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....e Central Excise Act, 1944 and the levy and collection of NCCD under Section 136 of the Finance Act, 2001. In W.P.No.101375/2021 a. Issue a Writ in the nature of certiorari or any other appropriate Writ direction, order quashing the Order-in-Original No. BEL-EXCUS 000-COM-SHD-002-2020-21 (CX) dated 08.01.2021 issued by Respondent No.2, enclosed at Annexure-A, as being without jurisdiction and unconstitutional. b. To issue a writ of Mandamus or any other Writ, order(s), directions, writ(s) declaring that no excise duty under the Central Excise Act, 1944 is payable on the goods manufactured by the Petitioner namely tobacco and tobacco products; c. To issue a writ of Mandamus or any other Writ, order(s), directions, writ(s) declaring that the Repeal and Saving provision of Section 174 of the Central Goods and Service Tax Act, 2017, insofar as it seeks to save the operation of the Central Excise Act, 1944, qua tobacco and tobacco products, as unconstitutional and bad in law; d. To issue a writ of Mandamus or any other Writ, order(s), directions, writ(s) declaring and holding that Section 136 of the Finance Act, 2001, under which there is a l....
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....assed and NCCD being a surcharge of excise duty could not have been levied. On the said ground it is prayed that the writ petitions be allowed. 8. The respondents justify the levy of GST, excise duty and NCCD separately on tobacco and tobacco products and prays for dismissal of the writ petitions. 9. Section 174(1) of the CGST Act, 2001 reads as under: Section 174 - Repeal and saving. (1) Save as otherwise provided in this Act, on and from the date of commencement of this Act, the Central Excise Act, 1944 (1 of 1944) (except as respects goods included in entry 84 of the Union List of the Seventh Schedule to the Constitution), the Medicinal and Toilet Preparations (Excise Duties) Act, 1955 (16 of 1955), the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957)), the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978), and the Central Excise Tariff Act, 1985 (5 of 1986) (hereafter referred to as the repealed Acts) are hereby repealed. (2) The repeal of the said Acts and the amendment of the Finance Act, 1994 (32 of 1994) (hereafter referred to as "such amendment" or "amended Act", as the case m....
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.... of the Union List of Seventh Schedule of the Constitution of India. 10. Entry 84 of the Union List of VII Schedule to the Constitution of India reads as under: 84. Duties of excise on the following goods manufactured or produced in India, namely: (a) petroleum crude; (b) high speed diesel; (c) motor spirit (commonly known as petrol); (d) natural gas; (e) aviation turbine fuel; and (f) tobacco and tobacco products Thus, apart from GST, excise duty is leviable on tobacco and tobacco products. 11. With coming into force of CGST Act, 2014, the Central Excise Act, 1944 has been amended with effect from 17.07.2017 and Fourth Schedule has been introduced to the Central Excise Act, 1944, wherein tobacco and tobacco products, which are the subject matter of the instant writ petitions, were subjected to excise duty as under: Tariff item Description of goods Unit Rate of Duty 2403 11 10 Hukkah or gudaku tobacco Kg. 60% 2403 99 10 Chewing tobacco Kg. 81% 2403 99 30 Jarda scented tobacco Kg. 81% However, by subsequent notifications, the said excise duty leviable has been a....
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.... of excise duty upon tobacco and tobacco products apart from they being taxed under the provisions of CGST. There is no error in the same. Thus, the respondents are entitled to levy CGST as well as excise duty on tobacco and tobacco products. 14. The next question that arises for consideration is whether when excise duty is exempted, can NCCD be leviable under the provisions of Section 136 of the Finance Act, 2001? 15. As mentioned above, NCCD is a surcharge of the excise duty. The case of the petitioners is that, when excise duty is not levied, NCCD cannot be levied and there was no excise duty on tobacco and tobacco products from 01.07.2017 to 06.07.2019 and NCCD could not have been levied during the said period. 16. Surcharge is an additional charge or payment. As stated above, Section 136 of the Finance Act, 2001 contemplates levying and collecting NCCD, which is considered as a surcharge, a duty of excise. Thus NCCD is not contemplated in Section 136 as a levy on the excise duty levied under the Central Excise Act, but a separate duty being levied on the value of the goods manufactured or produced and it is a type of excise duty. 17. The Hon'ble Supreme Court of In....