Custom, Excise & Service Tax Tribunal
C.C.E. & S.T.-Vadodara-I vs Thermax Ltd on 31 January, 2018
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Zonal Bench at Ahmedabad Appeal No. Arising out of the Order-in-Appeal No. Date of Impugned Order Passed By Appellant Respondent
E/13167/2013-SMC OIA-BVR-EXCUS-000-APP-124-13-14 22/08/2013 Commissioner of Central Excise, Customs and Service Tax-BHAVNAGAR Nirma Limited C.C.E. & S.T.-Bhavnagar E/13885/2013-SMC OIA-BVR-EXCUS-000-APP-147-13-14 15/10/2013 Commissioner of Central Excise-BHAVNAGAR Saurashtra Chemicals Division Of Nirma Ltd C.C.E. & S.T.-Bhavnagar E/12060/2015-SMC OIA-AHM-EXCUS-003-APP-037-038-15-16 10/11/2015 Commissioner of Central Excise-AHMEDABAD-III Mac Paper Mills C.C.E. & S.T.-Ahmedabad-iii E/12061/2015-SMC OIA-AHM-EXCUS-003-APP-037-038-15-16 19/11/2015 Commissioner of Central Excise-AHMEDABAD-III Mac Paper Mills C.C.E. & S.T.-Ahmedabad-iii E / 10099 / 2016-SMC OIA-AHM-EXCUS-003-APP-033-035-15-16 19/11/2015 Commissioner of Central Excise-AHMEDABAD-I( Appeal) Nirma Limited C.C.E. & S.T.-Ahmedabad-iii E / 10100 / 2016-SMC OIA-AHM-EXCUS-003-APP-033-035-15-16 19/11/2015 Commissioner of Central Excise-AHMEDABAD-I( Appeal) Nirma Limited C.C.E. & S.T.-Ahmedabad-iii E / 10101 / 2016-SMC OIA-AHM-EXCUS-003-APP-033-035-15-16 19/11/2015 Commissioner of Central Excise-AHMEDABAD-I( Appeal) Nirma Limited C.C.E. & S.T.-Ahmedabad-iii E / 10409 / 2016-SMC OIA-AHM-EXCUS-002-APP-042-15-16 30/12/2015 Commissioner of Central Excise-AHMEDABAD-II Aculife Healthcare P Ltd C.C.E.-Ahmedabad-ii E / 11146 / 2016-SMC OIA-AHM-EXCUS-003-APP-002-16-17 04/05/2016 Commissioner of Central Excise-AHMEDABAD-III Nilkanth Specific Family Trust C.C.E. & S.T.-Ahmedabad-iii E/CO/10118/2017 E / 12126 / 2016-SMC OIA-VAD-EXCUS-001-APP-268-2016-17 01/08/2016 Commissioner of Central Excise and Service Tax-VADODARA-I( Appeal) C.C.E. & S.T.-Vadodara-i Thermax Ltd Appearance:
Present S/Shri P.M. Dave, Aditya Tripathi, Advocates with Shri V. Jhala, Authorised Representative for the Appellants Present Shri K.J. Kinariwala, A.R. for the Respondent-Revenue Coram: Honble Dr. D.M. Misra, Member (Judicial) Date of hearing: 26.12.2017 Date of pronouncement: 31.01.2018 Final Order No.A/ 10237-10246 /2018 Per Dr. D.M. Misra:
The aforesaid Appeals are filed against respective Orders-in-Appeal passed by Commissioner (Appeals) Central Excise, Customs & Service Tax. Out of the above ten appeals, nine appeals are filed by the respective assesses and one by the Revenue, since involve common issues, accordingly, are taken up together for disposal.
2. Briefly stated the facts common to all these appeals are that the assessees had availed cenvat credit on Education Cess and Secondary & Higher Education Cess paid on the imported goods for the period after April 2012 onwards. Show Cause Notices were issued for recovery of the cenvat credit availed on the Education Cess and Secondary & Higher Education Cess, alleging that after issuance of Notification Nos. 13/2012-Cus and 14/2012-Cus both dated 17.03.2012, Education Cess and Secondary & Higher Education Cess paid on the additional duty of customs levaible under Section 3(1) of CTA, 1975 read with Section 91 & 94 of the Finance Act, 2004 and Secondary & Higher Education Cess under Section 136 read with Section 138 of Finance Act, 2007, became exempted, accordingly, cenvat credit under Rule 3(1) of Cenvat Credit Rules, 2004 was not admissible. On adjudication, the demand was confirmed with interest and penalty. Aggrieved by the said Orders Appeals were filed by the assessees which were rejected by the Commissioner(Appeals) in nine cases listed above(sr.no.1 to 9) and allowed in one case(sr.no.10). Hence, both Revenue and the assesses are in appeal before this forum.
3. Ld. Advocate Sh. P.M. Dave, for the appellant submits that cenvat credit has been allowed under Rule 3(1) of CCR, 2004 on Education Cess and Secondary & Higher Education Cess, hence it has no bearing on the exemption Notifications issued under the Customs Act. He has contended that prior to 17.03.2012, Revenue used to assess and collect Education Cess and also Secondary & Higher Education Cess twice; firstly on the aggregate of the transaction value, basic customs duty and CVD and second time on the sum total of transaction value, basic customs duty, additional customs duty (CVD) and the cesses paid on the CVD. Due to the anomaly of recovery of Cess on Cess, litigation ensued and ultimately this Tribunal in the case of Sarla Polymers vs CCE Vapi 2010 (253) ELT 203 (Trib.) held that cess could not be leviable and collected on that portion of the value of the imported goods, which represented education cess as well secondary & Higher education cess. It is his contention that the method of calculation of the Cess prior to and after 17.3.2012 is recorded at para 6.4 of the impugned Order. Thus, the aforesaid Notifications were issued to bring the method of computation of cesses in line with the principle of law laid down by the Honble Tribunal.
4. He has argued that if by the first Notification No.13/2012-cus Education cess leviable under Sections 91,93 and 94 of Finance Act,2004 became exempted and by Notification No.14/2014-cus secondary & higher education cess leviable under Sections 136,138 and 139 of the Finance Act,2007 became exempted, then under what provision the Cesses are levied and collected. It is his submission that answer to the said question is the key to the dispute in the present case. He has submitted that by virtue of Section 3(1) of the CTA, 1975, additional duty of customs is levied on goods imported into India, and it is equal to excise duty, chargeable on like articles produced or manufactured in India. The provision further lays down that if the excise duty leviable on the like goods was on ad valorem basis, then the additional duty on the imported goods would also be on ad valorem basis.
5. In the present case, all goods imported by the appellants, applicable additional duty of customs (CVD) equal to basic excise duty has been levied, assessed and collected being similar goods manufactured in India; also Education Cess and Secondary & Higher Education Cess were levied by virtue of Section 93 of Finance Act, 2004 and Section 138 of the Finance Act, 2007, respectively. It is his contention that irrespective of the fact that such cesses leviable under the above referred Finance Acts, were exempted by the aforesaid two customs Notifications, but once such cesses are leviable on the imported goods, because similar goods manufactured in India were leviable to such cesses, the quantum of duty under Section 3(1) of the CTA, 1975 on the imported goods should be equal to the duty of excise leviable on similar goods manufactured in India. It is his contention that on the goods imported by the appellant, Education Cess as well as Secondary & Higher Education Cess had been charged and collected and it was so collected by virtue of section 3(1) of the Customs Tariff Act, 1975, otherwise there has been exemption from payment of such cesses leviable under Sections 94 & 139 of the above two Finance Acts; thus such cesses so collected are eligible to credit. The Education Cess and Secondary & Higher Education Cess were charged and collected from the assesses-appellants by virtue of Section 3(1) of CTA,1975 read with sections 93 and 138 of the respective Finance Acts.
6. Assailing the impugned order, the Ld. Advocate has submitted that Education Cess and Secondary & Higher Education Cess were not collected on the goods imported by the appellant on the aggregate duty of customs but the cesses were actually assessed and collected on the aggregate of transaction value, basic customs duty and CVD. It is also an error in holding that cesses charged and collected were customs Education Cess and Secondary Higher Education Cess, because cesses are separate levies, imposed under statutory Provisions in case of goods manufactured in India as well as goods imported into India and it is only the method for determining value, for assessing such cesses that refers to the inclusion of basic customs duty and CVD in the assessable value. He has argued that even if exemption had not been allowed by issuing Notification 13/12-Cus and 14/12-Cus, the method of determining value would have been the same and therefore, such method for arriving at the value for assessing the cesses cannot mean that cesses were customs Education Cess and Secondary Higher Education Cess. It is his contention that for all legal and practical purposes amount assessed and collected as Education Cess and Secondary Higher Education Cess are education cesses and not Central Excise cess or customs cess.
7. He has further contended that in view of the exemption from payment of Education Cess and Secondary Higher Education Cess leviable under Section 91,93 and 94 of the Finance Act, 2004 and Sections 136, 138 and 139 of the Finance Act, 2007, Education Cess and Secondary & Higher Education Cess charged and collected from the appellant are in the nature of additional duty leviable under Section 3 of the Customs Tariff Act, equivalent to Education Cess as well as Secondary Higher Education Cess levialble on similar goods manufactured in India. Such education cess and secondary higher education cess on excisable goods are specified under clauses (vi) and (via) of Rule 3(1) of the CCR, 2004. Additional duty leviable under Section 3 of the CTA, 1975 equivalent to duty of excise specified under clause (vi) and (via) are admissible as cenvat credit by virtue of clause (vii) of Rule 3(1) of CCR, 2004. In the present case, there being exemption from payment of Education Cess and Secondary Higher Education Cess leviable on the imported goods by virtue of the exemption Notifications issued under the customs Act, it is obvious that Education Cess and Secondary & Higher Education Cess were charged and collected from the appellant in view of the levy of such cesses on similar goods manufactured in India. It is his contention that Education Cess and Secondary Higher Education Cess thus charged and collected as additional duty equivalent to the duty of excise leviable on goods manufactured in India were covered under Clause (vii) of Rule 3(1) of CCR, 2004 and hence its credit is admissible. Further, without prejudice to their submission it is further argued that Education Cess and Secondary Higher Education Cess has been levied and collected on CVD portion of the total duty as evident from the calculation in the bills of entry, hence cesses so calculated on the CVD portion are at least admissible as cenvat credit.
8. Per contra, Ld. AR for the Revenue has submitted that education cess on excisable goods manufactured in India and goods imported was levied for the first time in 2004 and secondary higher education cess was levied in the year 2007. He has submitted that as per Section 94 of Finance Act,2004 education cess is on aggregate duties of customs and as per Section 139 Finance Act,2007 secondary & higher education cess is also on aggregate duties of customs. The components that comprises of aggregate duties of customs consist of basic customs duty (BCD) levied in terms of Section 12 of the Customs Act, 1962 read with Section 2 of the CTA, 1975, additional duty of customs, equal to excise duty (CVD) is levied in terms of Section 3(1) of CTA, 1975 on the value comprising aggregate of the assessable value and basic customs duty; CVD comprises of basic excise duty and Education Cess and Secondary Higher Education Cess levied on the basic excise duty as per Section 91 read with Section 93 of Finance Act, 2004 and Section 136 read with Section 138 of Finance Act, 2007, respectively. It is his contention that total of CVD, BCD and cesses on CVD is the aggregate of duties of customs for the purpose of levy of cesses on customs duty levied in terms of Section 91 read with Section 94 of Finance Act, 2004 and Section136 read with Section 139 of the Finance Act, 2007, respectively. Thus, on imported goods, the cesses were levied twice, first under Section 3(1) of the CTA and again under Section 91 read with Section 94 as well as Section 136 read with Section 139 of the Finance Act, 2007. The first time CESS is collected in terms of section 3(1) of Customs Tariff Act, 1975 and second time on aggregate of duties of Customs (which included cesses on BED) in terms of Section 91 read with Section 94 relating to education cess of Finance Act, 2004 and Section 136 read with Section 139 of Finance Act, 2007 relating to Secondary Higher Education Cess. It is his contention that in terms of Rule 3 of CCR, 2004 cess paid on basic excise duty (Component of CVD) levied in terms of Section 3(1) of Customs Tariff Act was allowed as credit, whereas cenvat credit of cesses paid on aggregate duties of customs in terms of Section 91 read with Section 94 of Finance Act, 2004 and Section 136 read with Section 139 of Finance Act 2007 was never admissible. Further, he has submitted that to simplify the issue of eligibility of cenvat credit of Education Cess and Secondary Higher Education Cess paid on imported goods, the exemption Notification No. 13 & 14 dated 17.03.2012 were issued. Thus, cess on imported goods thereafter levied only on aggregate duties of customs which were not exempted, and its credit has never been allowed. Countering the argument of the assesse that both the exemption Notifications were issued under Section 25 of the Customs Act,1962 therefore cesses levied on CVD portion as well as on the aggregate of duties of customs are exempted is fallacious, in as much as the Education Cess as well as Secondary & Higher Education Cess continue to be collected on aggregate duties of customs even after issuance of the said Notification. Further, referring to the appeal filed by the Revenue, the Ld. AR has submitted that the Ld. Commissioner (Appeals) erroneously referred to the decision in Birla Corporation Ltd. 2015 (330) ELT 568 which was an interim order and issued under a different set of circumstances, therefore not applicable to the facts of the present case. He has vehemently argued that Rule 3(1) of CCR, 2004 clearly prescribes admissibility of cenvat credit of duty paid on Education Cess and Secondary Higher Education Cess in terms of Section 93 of Finance Act, 2004 and Section 138 of Finance Act, 2007, thus the Education Cess and Secondary Higher Education Cess paid under Section 94 of the Finance Act 2004 and Section 139 of Finance Act, 2007 respectively not admissible.
9. Heard both the sides and perused the records.
10. The point of law needs for determination is: whether the assesse are entitled to cenvat credit of Education Cess and Secondary Higher Education Cess paid on imported goods post March 2012. It the Revenues contention that the Education Cess and Secondary Higher Education Cess which was levied and collected on the additional duty of customs on imported goods, after 17.03.2012, became exempted by issuance of Notifications 13/12-Cus and 14/12-Cus, hence, credit of the said cessess even if paid on the aggregate duty of customs, not admissible. Before proceeding further, it is necessary to refer to the relevant provision i.e. Rule 3(1) of CCR, 2004 under which cenvat credit on Education Cess and Secondary & Higher Education Cess paid on the imported goods is allowed .
CENVAT credit RULE 3.? (1) A manufacturer or producer of final products or a [provider of output service] shall be allowed to take credit (hereinafter referred to as the CENVAT credit) of -
(i) ..
(ii) ..
(iii)..
(iv) ..
(v)
(vi) the Education Cess on excisable goods leviable under section 91 read with section 93 of the Finance (No. 2) Act, 2004 (23 of 2004); (via) the Secondary and Higher Education Cess on excisable goods leviable under section 136 read with section 138 of the Finance Act, 2007 (22 of 2007);
(vii) the additional duty leviable under section 3 of the Customs Tariff Act, equivalent to the duty of excise specified under clauses (i), (ii), (iii), (iv), (v) [, (vi) and (via)]:
[ *???????*??????* ] [(viia) the additional duty leviable under sub-section (5) of section 3 of the Customs Tariff Act [ *?*?* ] :
Provided that a provider of [output] service shall not be eligible to take credit of such additional duty;]
(viii) the additional duty of excise leviable under section 157 of the Finance Act, 2003 (32 of 2003);
(ix) the service tax leviable under section 66 of the Finance Act; [*??*??*] [(ixa) the service tax leviable under section 66A of the Finance Act;] [(ixb) the service tax leviable under section 66B of the Finance Act;]
(x) the Education Cess on taxable services leviable under section 91 read with section 95 of the Finance (No. 2) Act, 2004 (23 of 2004);
[(xa) the Secondary and Higher Education Cess on taxable services leviable under section 136 read with section 140 of the Finance Act, 2007 (22 of 2007); and] [(xi) the additional duty of excise leviable under [section 85 of Finance Act, 2005 (18 of 2005),]] :
paid on -
(i) any input or capital goods received in the factory of manufacture of final product or [by] the provider of output service on or after the 10th day of September, 2004; and
(ii) any input service received by the manufacturer of final product or by the provider of output services on or after the 10th day of September, 2004, including the said duties, or tax, or cess paid on any input or input service, as the case may be, used in the manufacture of intermediate products, by a job-worker availing the benefit of exemption specified in the notification of the Government of India in the Ministry of Finance (Department of Revenue), No. 214/86-Central Excise, dated the 25th March, 1986, published in the Gazette of India vide number G.S.R. 547(E), dated the 25th March, 1986, and received by the manufacturer for use in, or in relation to, the manufacture of final product, on or after the 10th day of September, 2004 :
[Provided that the CENVAT credit shall be allowed to be taken of the amount equal to central excise duty paid on the capital goods at the time of debonding of the unit in terms of the para 8 of Notification No. 22/2003-Central Excise, published in the Gazette of India, part II, Section 3, sub-section (i), vide number G.S.R. 265(E), dated, the 31st March, 2003.] Explanation. - For the removal of doubts it is clarified that the manufacturer of the final products and the provider of output service shall be allowed CENVAT credit of additional duty leviable under section 3 of the Customs Tariff Act on goods falling under heading 9801 of the First Schedule to the Customs Tariff Act. [(1a)?A provider of output service shall be allowed to take CENVAT credit of the Krishi Kalyan Cess on taxable services leviable under section 161 of the Finance Act, 2016 (28 of 2016)].
11. A plain reading of the clause (vi) & (via) of the aforesaid rules makes it clear that Education Cess on excisable goods leviable under Section 91 read with Section 93 of the Finance Act, 2004; the Secondary and Higher Education Cess on excisable goods leviable under Section 136 read with Section 138 of Finance Act, 2007, are eligible to credit. Under Clause (vii) additional duty of customs leviable under Section 3 of the Customs Tariff Act equivalent to duty of excise specified under Clause (i),(ii),(iii),(iv),(v),(vi),&(via) is eligible to credit.
12. The Revenue as well as the assesse have fairly argued that prior to 17.03.2012 Education Cess and Secondary Higher Education Cess was collected twice on the imported goods, first on the CVD portion of the duty and secondly on aggregate duties of customs which comprised CVD portion of duty and also Education Cess and Secondary Higher Education Cess on CVD. Needless to mention Additional duty under Sec.3(1) of the CTA,1975 is a customs duty levied on imported goods, and its rate is equivalent to the like article manufactured and produced in India, popularly called as Countervailing duty(CVD). On issuance of Notification No. 13/12-Cus and 14/12-Cus both dated 17.03.2012, exemption was allowed to Education Cess and Secondary & Higher Education Cess charged on the additional duty of customs i.e. CVD portion of duty, whereas levy of Education Cess and Secondary Higher Education Cess continue to be collected on the aggregate duties of customs. Therefore, Education Cess and Secondary & Higher Education Cess collected under Section 91 read with Section 94 of Finance Act, 2004 and Section 136 read with Section 139 of Finance Act, 2007 continued to be charged on imported goods. Though Education Cess and Secondary & Higher Education Cess was charged twice prior to 17.3.2012 but the credit was never allowed twice, that is, on the additional duty (CVD) equivalent to the excise duty leviable on like goods manufactured and produced in India) and again on aggregate duty of customs. It is allowed only in the former case.
13. The fundamental argument of the Appellant is that the Education Cess and Secondary & Higher Education Cess paid on the imported goods is admissible to credit as there is no designation in the CCR,2004 as excise cess and customs cess. Besides, the exemption notifications were issued under Sec.25 of the Customs Act,1962, hence, no bearing to the admissibility of credit on such cesses under the CCR,2004. No doubt in clause (vi) & (via), there is no mention of customs cess or Excise cess, but it cannot be denied that credit was admissible on Education Cess and Secondary Higher Education Cess paid on the excise duty leviable on manufactured goods as the said provision specifically mentions Sections 93 of the Finance Act,2004 and Section 138 of the Finance Act,2007 which relate to levy of Education Cess and Secondary Higher Education Cess, respectively, on Excisable goods specified in the First Schedule to the Central Excise Tariff Act,1985 being produced and manufactured in India; the credit on Education Cess and Secondary Higher Education Cess paid on imported goods i.e. on the additional duty of customs(CVD) levied under Sec.3(1) of Customs Tariff Act,1975 was admissible and allowed prior to 17.03.2012 not under clause (vi) and (via) but under clause (vii) of Rule 3(1) of CCR,2004, which mentions additional duty leviable under Sec.3 of the Customs Tariff Act, equivalent to the duty of excise mentioned in clause(i),(ii),(iii),(iv),(v) (vi) and (via). The clause (vi) refers to Education Cess levied on excisable goods under Sec.91 read with Sec.93 of Finance Act,2004 and cl. (via) refers to Secondary & Higher Education Cess levied under Sec.136 read with Sec 138 of the Finance Act,2007; where education cess is levied on imported goods under Sec. 91 read with Sec. 94 of the Finance Act,2004 and Secondary & Higher Education Cess levied under Sec.136 read with Sec 139 of Fiance Act,2004 which was not allowed as credit even though paid prior to 17.3.2012. With the amending Notifications 13/2012 Cus. and 14/2012 Cus. Dt.17.3.2012 education cess and Secondary & Higher Education Cess leviable under Sec.3(1) of the CTA,1975 read with provisions governing the said Cesses i.e. secs.91,93 & 94 of Finance Act,2004 and Sec.136,138 & 139 of Finance Act,2007 have been exempted on imported goods. The said Notifications were issued under Sec.25 of the Customs Act,1962 as the said cess were allowed exemption on the additional duty of customs levied under Sec 3(1) of Customs Tariff Act,1975. Thus, the equivalent duty under clause(vi) & (via) as mentioned under cl.(vii) of CCR,2004, after 17.3.2012 being exempted, no credit could be extended on the same. Therefore, the Education Cess and Secondary Higher Education Cess paid under Section 94 of the Finance Act 2004 and Section 139 of the Finance Act, 2007, on the aggregate duty of customs levied under Sec.12 the Customs Act,1962 can never be held to be admissible to credit which continued to be levied before and after 17.3.2012.
14. I find that The issue involved in the present appeals relates to pure question of interpretation of law and the demand notices were issued for normal period of limitation, therefore, imposition of penalty on the assesses is unwarranted, hence set aside.
15. In the result, the appeals filed by the assesses are partly allowed to the extent of setting aside the penalty imposed and the appeal filed by the Revenue is allowed to the extent of confirmation of denial of cenvat credit with interest. Appeals are disposed of as above.
(Pronounced in open Court on 31.01.2018 ) ( Dr. D.M. Misra) Member (Judicial Neha E/13167, 13885/2013, 12060-12061/2015, 10099-10101, 10409, 11146, 12126/2016-SM 12