Custom, Excise & Service Tax Tribunal
M/S. Tfl Quinn India Pvt. Ltd vs Cce, Hyderabad on 17 May, 2013
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT BANGALORE
Bench Division Bench
Court I
Date of Hearing:17/05/2013
Date of decision:17/05/2013
Application No.E/Stay/1967/2012
Appeal No.E/2700/2012
(Arising out of Order-in-Appeal No.58/2012(H-IV)CE dt. 04/07/2012 passed by CC,CE&ST(Appeals), Hyderabad)
For approval and signature:
Honble Mr. P.G. Chacko, Member(Judicial)
Honble Mr. B.S.V. Murthy, Member(Technical)
1.
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2.
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
Yes
3.
Whether their Lordship wish to see the fair copy of the Order?
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
Yes
M/s. TFL Quinn India Pvt. Ltd.
..Appellant(s)
Vs.
CCE, Hyderabad
..Respondent(s)
Appearance None for the appellant.
Mr. S. Teli, Deputy Commissioner(AR) for the respondent.
Coram:
Honble Mr. P.G. Chacko, Member(Judicial) Honble Mr. B.S.V. Murthy, Member(Technical) FINAL ORDER No._______________________ [Order per: P.G. Chacko] The stay application seeks waiver and stay against the adjudged dues viz. duty of Rs.79,360/- and penalty of Rs.5000/-. There is no representation for the applicant/appellant, but their written submissions are on record, which state that this Tribunal granted waiver of predeposit in a similar case by Stay Order No.824/2012 dt. 25/05/2012 in appeal No.E/2558/2011 and that 50% of the duty amount demanded in the present case was deposited by the appellant as directed by the lower appellate authority. It is further submitted that the substantive issue stands conclusively decided against the Revenue by a larger Bench of this Tribunal in the case of Kumar Arch Tech Pvt. Ltd. Vs. CCE, Jaipur-II [2013-TIOL-614-CESTAT-DEL-LB]. In the circumstances, we are inclined to dispose of the appeal itself finally at this stage. Accordingly, after dispensing with predeposit of the balance dues, we take up appeal.
2. The appellant is a 100% EOU engaged in the manufacture of leather chemicals. The impugned demand of Rs.79,360/- is towards education cess and secondary and higher education cess on DTA clearances for the period from October 2010 to July 2011 and the same is on the premise that education cess @ 2% and secondary and higher education cess @ 1% were leviable under Section 93 of the Finance Act 2004 and Section 138 of the Finance Act 2007 respectively on all duties of excise including the duty of excise leviable on the DTA clearances of the EOU under the proviso to Section 3(1)(b) of the Central Excise Act. The case of the assessee is that, as education cess was also taken into account while computing duties in terms of the proviso to Section 3(1)(b) of the Act, there is no legal sanction for a further levy of education cess on the duty of excise paid on the DTA clearances. On a perusal of the judgment of the larger Bench, we find that this view of the appellant has been accepted. The substantive issue is thus squarely covered in their favour by the larger Bench decision (supra). In the result, therefore, the impugned order is set aside and this appeal is allowed. The stay application also stands disposed of.
(Operative part of this order pronounced in the court on completion of hearing) (B.S.V. MURTHY) MEMBER (TECHNICAL) ( P.G. CHACKO ) MEMBER (JUDICIAL) Nr 3