TaxTMI 
TaxTMI 
2025 (11) TMI 939
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.... Duty in terms of Section 3(5) of CETA and thus, the total duty payable is at the rate of 26.628%. On the other hand, it is the case of the appellants that the said Education Cess and Secondary & Higher Education Cess needs to be taken into account only once after calculating the BCD and duty under Section 3(1) and the total duty payable is at the rate of 25.852%. A show cause notice dated 17.06.2014 demanding differential duty of Rs.4,58,878/- along with interest and penalty was issued. The demand was dropped vide OIO dated 18.02.2015 by the original authority. On an appeal filed by Revenue, the proposals in the show cause notice were upheld by the impugned order dated 28.03.2018 passed by Commissioner (Appeals). 3. Ms. Krati Singh, learned Counsel for the appellants, submits that the issue is no longer res integra having been decided by the Hon'ble Supreme Court, the Larger Bench of the Tribunal and other Benches; it was decided that once Education Cess and Secondary & Higher Education Cess is added to the customs duties to arrive at aggregate value of customs duties in terms of Proviso to Section 3 (1) of the Act, the question of charging Education Cess and Secondary & Higher....
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....u, Salem, 2024 (6) TMI 1173-CESTAT CHENNΑΙ â€¢ EID Parry (India) Ltd. v. CCE & ST, LTU Chennai And Vice-Versa, 2017 (9) TMI 876- CESTAT CHENNAI • M/s Komal Enterprises - 2024 (1) TMI 390- CESTAT Chandigarh 4. Learned Authorized Representative for the Department reiterates the findings of the impugned order. 5. We find that the issue is no longer res integra. We find that Co-ordinate Bench at Ahmedabad in the case of Sarla Performance Fibres Ltd. (supra) decided the issue in favour of the appellants. The decision of the Tribunal was upheld by the Hon'ble Apex Court (supra). The Tribunal held as follows: 58. We have considered the submissions made by the appellant as well as other interveners. 59. The issue to be decided is whether the department was right in demanding education cess under relevant provisions of Finance Act leviable as excise duty also after arriving at aggregate of duties of customs levialbe. In terms of proviso to Section 3(1) of the Central Excise Act, 1944 (the Act), when 100% EOU clear the goods and to domestic tariff area (DTA), duties of excise leviable shall be equal to the aggregate of duties o....
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....ition..." also "additional tax". Thus the meaning of surcharge is to charge in addition or to subject to an additional or extra charge. If that meaning is applied to Section 2 of the Finance Act, 1963 it would lead to the result that income tax and super tax were to be charged in four different ways or at four different rates which may be described as (i) the basic charge or rate (In Part I of the First Schedule); (ii) surcharge; (Hi) special surcharge, and (iii) additional surcharge calculated in the manner provided in the Schedule. Read in this way the additional charges form a part of the income tax and super tax. It is possible to argue and that agreement has been commended on behalf of the Revenue that the word "surcharge" has been used in Article 271 for the purpose of separating it from the basic charge of a tax or duty for the purpose of distributing the proceeds of the same between the Union and the States. The proceeds of the surcharge are exclusively assigned to the Union. Even in the Finance Act itself it is expressly stated that the surcharge is meant for the purpose of the Union." In the case of Sarojini Tea Co. Pvt. Ltd., after hearing various judgments incl....
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.... therefore there would be no education cess also. Once the levy is a percentage of another duty and what is required to be worked out is the aggregate of customs duties, the percentage addition also once made for the purpose of customs duty, the working of aggregate of customs duty for levy of excise duty is complete. If by adding another percentage as the department has proposed to do, the department is adding something extra to the customs duty which is not supported by the proviso to Section 3(1). 64. The next submission was that the Central Excise Act, Customs Tariff Act, Exim Policy etc. together form an integrated scheme of taxation as far as EOU is concerned and therefore they have to be interpreted in integrated manner. We agree with this submission. We also agree that the action taken by the department in this case is against this basic principle. The proviso to Section 3(1) of the Act requires the department to arrive at aggregate of customs duties and levy an equal amount as excise duty. Therefore, once aggregate of customs duties is determined, applying the provisions of Finance Act as it relates to goods manufactured by 100% EOU does not arise. We find the fol....
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....ation to be boggled by any other considerations. Fiction must be given its due play; there is to be no halfway stop. 25. The notification shifts the date of import - in the case of a ship which is imported as an ocean going vessel but is subsequently broken up from the actual date of import to the date of breaking up by creating a legal fiction. Once it is held that it is open to the Central Government to impose such a condition or to create such a fiction, as the case may be, the condition or the fiction has to be given full effect to. It must be deemed that the ship is imported on the date it is broken up (as explained hereinabove) and its value and rate of duty should be determined with reference to such date." 68. We find ourselves in agreement with the learned advocate. For all purposes, goods cleared to DTA from 100% EOU were treated as import but having been located within the country, nature of levy has to be a levy on the manufacture. Hence the need for a proviso and also explanation as to how the excise duty leviable on these goods have to be determined. Therefore, customs duty payable on imported goods is the measure of excise duty payable on goods clea....