2024 (12) TMI 405

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....e appellant, admittedly, effected certain DTA clearance and discharged the applicable excise duty in terms of Section 3(1) of the Central Excise Act, 1944. The Revenue appears to have invoked Section 3(b)(ii) ibid r/w Rule 17 of the Central Excise Rules, 2002 and vide the communication dated 6.3.2009 indicated that the aggregate duties of customs of import of the like goods into India was a measure of excise duty chargeable on the goods cleared by 100% EOU to DTA and hence, on the aggregate duties of customs, education cess and secondary higher education cess and higher education cess would be chargeable once again, even though the aggregate duties of customs included education cess and secondary higher education cess, which appears to have....

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....rough the order (supra) relied upon by the ld. Advocate of this Chennai Bench and the Bench, after having considered the decision of larger bench of the Tribunal in the case of Kumar Arch Tech Pvt. Ltd. Vs. CCE, Jaipur reported in 2013 (290) ELT 372 (Tri. LB) has held that the demand confirmed in the against the taxpayer therein was not called for and accordingly set aside the demand therein. Relevant observations are as under: "5. We find that the issue whether educational cess and secondary and higher education cess are chargeable on DTA clearance made by 100% EOU even if such cess were added while calculating the aggregate duties of customs payable under the Customs Act, 1962 or under any other law in force, has been answered by....

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.... the existing levies, the existing levies, obviously, would not include this cess. For this reason only, Sections 93 & 94 of Finance Act, 2004 and Sections 138 and 139 of Finance Act, 2007 while defining the measure of education cess and S&H cess in respect of excisable goods and imported goods respectively, specifically provide that the aggregate of duties of excise or aggregate of duties of customs levied by the Central Government in the Ministry of Finance (Deptt. of Revenue), on which this cess is to be 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 prescribe....