TaxTMI 
TaxTMI 
2023 (4) TMI 166
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.... that the issue involved in this appeal is identical to the issue involved in respect of the same appellant in appeal No. E/52864 of 2018, which was disposed of by final order No. A/50793/2019 - EX (DB) dated 24.06.2019. It was held in the final order that the appellant was not entitled to Cenvat credit on the clean energy cess paid by it and accordingly the appeal was dismissed. 4. Learned counsel for the appellant fairly submits that although the appellant had appealed against the above order, it has not been stayed or over-ruled by a higher judicial forum. We find that the aforesaid final order was reported as ACC Ltd. versus Commissioner of C.G.S.T. & C.E.[ 2019 (31) G.S.T.L. 103 (Tri. - Del.)] Paragraph 6 to 10 of this order are reproduced below :- "6. After hearing both the parties and perusing the record of the appeal as well as the referred case laws, we are of the opinion as follows : 6.1 In the impugned appeal, the substantial question of law to be adjudicated is as follows : 6.1.1 Whether the appellant is entitled for Cenvat credit on the clean energy cess levied on coal, peat and lignite vide Finance Act, 2010. 6.1.2 For the purpose, it becomes necessary to fir....
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.... relating thereto. (iv) Shall first be credited to Consolidated Fund of India. (v) Shall be utilised by Central Government for the purposes as mentioned in sub-section (3)/Clause (4) above. (vi) The cess shall be in addition to any cess or duty leviable on the goods specified in 10th Schedule. (vii) It shall be for the purposes of Union and proceeds thereof shall not be distributed among the States. (viii) Provisions of Central Excise Act, 1944 shall be applicable as far as levy of exemption from duty, refund, offences and penalties are concerned, however with such modifications and alterations as may be deemed necessary. 6.2 Apparent from these clauses is the fact that clean energy cess is nomenclated as duty of Excise and the provisions of Central Excise Act, 1944 are made applicable in relation to levy/exemption, etc. thereof. But whether the cess is actually in the form of excise duty or tax or it is merely a fee, the question is still to be adjudicated for deciding the above mentioned substantial question of law. For the purpose, we refer to the following case laws : "17. The Constitution Bench of the Apex Court in the case of Kewal Krishna Puri & another v. Stat....
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....area or the said class of persons or trade or business the cess is distinguishable from a tax and is described as a fee. Tax recovered by public authority invariably goes into the consolidated fund which ultimately is utilised for all public purposes, whereas a cess levied by way of Fee is not intended to be, and does not become, a part of the consolidated fund. It is earmarked and set apart for the purpose of services for which it is levied. It was further held that, "It is true that when the Legislature levies a fee for rendering specific services to a specified area or to a specified class of persons or trade or business, in the last analysis such services may indirectly form part of services to the public in general. If the special service rendered is distinctly and primarily meant for the benefit of a specified class or area the fact that in benefiting the specified class or area the State as a whole may ultimately and indirectly be benefited would not detract from the character of the levy as a fee. Where, however, the specific service is indistinguishable from public service, and in essence is directly a part of it, different considerations may arise. In such a case it....
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....y a fee is conditioned by the fact that it must be "by and large" a quid pro quo for the services rendered. However, correlationship between the levy and the services rendered (sic or) expected is one of general character and not of mathematical exactitude. All that is necessary is that there should be a "reasonable relationship" between the levy of the Fee and the services rendered." 21. From the aforesaid judgments it is clear that the traditional view is that there must be actual quid pro quo for a fee, has undergone a sea change in the recent years. The tax recovered by a public authority invariably goes into the Consolidated Fund, which ultimately is utilized for all public purposes. Whereas, a cess levied by way of fee is not intended to be, and does not become, a part of the Consolidated Fund. It is earmarked and set apart for the purpose of services for which it is levied." 6.3 In accordance of Articles 266 and 270 of the Constitution of India it becomes clear "26. Any cess levied and collected in order to constitute a fee after such collection should go into a special fund earmarked for carrying out the purpose of the Act. The said fund so set apart should be appropr....