Custom, Excise & Service Tax Tribunal
M/S. Vedanta Aluminium Ltd vs Commr. Of Central Excise, Customs & on 21 August, 2017
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Service Tax Appeals Nos. 200/2011 to 209/2011
(Arising out of the Order-in-Appeal No.09-24/ST/BBSR-II /2011 dated 07/03/2011 passed by the Commissioner of Central Excise (Appeals), Customs & Service Tax, BBSR)
M/s. Vedanta Aluminium Ltd.
Applicant (s)/Appellant (s)
Vs.
Commr. of Central Excise, Customs &
Service Tax, BBSR-II
Respondent (s)
Appearance:
NONE for the Appellant (s) Sri K. Chowdhury, Supdt. (A.R.) for the Respondent(s) CORAM:
HONBLE SHRI JUSTICE (DR.) SATISH CHANDRA, PRESIDENT HONBLE SHRI V. PADMANABHAN, MEMBER (TECHNICAL) Date of Hearing & Decision :21/08/2017 ORDER NO: F/O 76587-596/2017 Per Shri Justice (Dr.) Satish Chandra List revised. None present for the appellant nor any adjournment request is available on record on behalf of the appellants. It shows that the appellants are not interested to pursue their appeals.
2. On the other hand, Shri K. Chowdhury, The Ld. Counsel for the Department states that the issue is squarely covered in favour of the Department as per the ratio laid down in the case of Hero Honda Motors Vs. Commr. of Central Excise, Meerut-I reported in 2017 (348) ELT 737 (Tri.-Del.) where it was observed that :
8.?Heard both sides, perused records. Notification No. 50/2003, dated 10-6-2003 in question grants exemption to goods other than specified goods. There is no dispute that the manufacturing unit of the appellants is situated in one such area and entitled to exemption. The dispute however, is with reference to whether the appellant is liable to pay NCCD, Education Cess and Secondary Higher Education Cess in spite of the exemption notification mentioned above. NCCD has been levied under Section 136 of the Finance Act, 2001. The Education Cess as well as Secondary Higher Education Cess are levied on the basis of separate Finance Acts. Ld. Commissioner has decided in all the impugned orders that the appellant will not be entitled to exemption for the above three types of duties in spite of enjoying the benefit of exemption under Notification No. 50/2003.
From the detailed submissions made by the ld. Counsel for the appellant, it emerges that the issue already stands decided against the appellant and the ld. Counsel has fairly admitted the same. He has conceded that the issue stands decided against them by both the High Courts of Uttarakhand in the case of Bajaj Auto Limited as well as by the Honble High Court of Gauhati in the case of Prag Bosimi (supra). To understand the reasoning adopted by the Honble High Court we give below the relevant finding of the Honble Gauhati High Court. It is to be recorded that the ld. Commissioner did not have the benefit of the above decisions at the time of passing the impugned orders.
[Judgment per : Madan B. Lokur, CJ]. - In this appeal under Section 35G of the Central Excise Act, 1944 the following substantial question of law has been framed for consideration :-
Whether NCC Duty (National Calamity Contingent duty) is a duty exempted under Notification No. 32/99-C.E., dated 8-7-1999 and, if not, whether Cenvat credit under the Cenvat Credit Rules, 2004, can be utilised, towards payment of such duty, which is not exempted under the said Notification?
2.The substantial question of law is really n two parts : The first part being whether NCC duty is exempted under Notification No. 32/99-C.E.? If the answer to the first part is in the negative, then the second part is, whether Cenvat credit under the Cenvat Credit Rules can be utilised towards payment of NCC duty? Our answer to the first part of the question is in the negative and our answer to the second part of the question is in the affirmative.
3.?NCC duty is leviable under Section 136 of the Finance Act, 2001. Sub-section (1) of Section 136 of the Finance Act makes it clear that NCC duty is by way of a surcharge and is a duty of excise. NCC duty is chargeable on goods specified in Seventh Schedule of the Finance Act and is in addition to any other duties of excise chargeable on such goods under the Central Excise Act, 1944 (for short the Excise Act). In terms of Section 136(3) of the Finance Act the provisions of the Excise Act and the Rules made thereunder relating to refunds and exemptions from duties, etc., apply in relation to the levy and collection of NCC duty.
4.?From the above, it is quite clear that NCC duty is nothing but a duty of excise and on this, learned counsel for both parties are ad idem.
5.?Notification No. 32/99-C.E. relates to exemption to North East States from excise duty and additional excise duty on goods cleared from certain units. This Notification has been issued in exercise of powers conferred by sub-section (1) of Section 5A of the Excise Act read with sub-section (3) of Section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 and sub-section (3) of Section 3 of the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978. By virtue of this notification the Central Government has exempted goods specified in the First and Second Schedules to the Central Excise Tariff Act from so much of the duty of excise or additional duty of excise, as the case may be, leviable thereon under any of the said Acts as is equivalent to the amount of duty paid by the manufacturer of goods other than the amount of duty paid by utilisation of Cenvat credit under the Cenvat Credit Rules, 2004.
6.?It is clear from the above that the general exemption is only in respect of the duty of excise or additional duty of excise under any of the above Acts, namely, the Central Excise Act, 1944, the Additional Duties of Excise (Goods of Special Importance) Act, 1957 and the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978. The general exemption has absolutely no reference to NCC duty which is levied as a surcharge under the provisions of the Finance Act, 2001.
7.?Consequently, insofar as the first part of the substantial question of law framed above is concerned, it must be answered in the negative which is to say that NCC duty, even though it is a duty of excise, is not exempted under Notification No. 32/99-C.E. The operation of this notification is limited.
12.?By considering the totality of the facts and circumstances of the case, we are of the view that the demand pertaining to the NCCD, Education Cess, Secondary Higher Education Cess is payable and same cannot be adjusted against the Cenvat credit as assessee has never paid any duty in any form. Hence, we find no reason to interfere with the impugned orders passed by the adjudicating authority. The same are hereby sustained. He submits that in the instant case the issue is pertaining to the levy of the education cess and secondary higher education cess while the exemption from the payment of duty was granted as per Notification No.9/09 dated 3rd March, 2009. He reiterated that the issue is squarely covered by our earlier order in the case of Hero Honda Motors Vs. Commr. of Central Excise (supra). I
3. In the result, we uphold the impugned order and all the appeals filed by the appellants are dismissed for default.
(Dictated and Pronounced in the open Court)
Sd/- Sd/-
(SHRI V. PADMANABHAN ) (JUSTICE DR. SATISH CHANDRA)
TECHNICAL MEMBER PRESIDENT
k.b/-
Service Tax Appeals Nos. 200/2011 to 209/2011
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