Custom, Excise & Service Tax Tribunal
M/S.Cairn India Ltd vs Cce, Jaipur-Ii on 24 July, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI
Date of Hearing/Decision:24.07.2014
Appeal No. E/59688/2013-EX(DB)
[Arising out of Order-in-Appeal No.54(VC)CE/JPR-II/2013 dated 8.5.2013 passed by the Commissioner of Central Excise (Appeals), Jaipur-II]
M/s.Cairn India Ltd. Appellant
Vs.
CCE, Jaipur-II Respondent
For approval and signature:
Honble Smt. Archana Wadhwa, Member (Judicial)
Honble Shri Rakesh Kumar, Member (Technical)
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1. Whether Press Reporters may be allowed to see No
CESTAT (Procedure) Rules, 1982.
2. Whether it should be released under Rule 27 of the No
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy Seen
of the Order?
4. Whether Order is to be circulated to the Departmental Yes
authorities?
Appearance:
Rep. by Shri Monish Panda, Advocate for the appellant.
Rep. by Shri Yashpal Sharma, DR for the respondent.
CORAM:
Honble Smt. Archana Wadhwa, Member (Judicial)
Honble Shri Rakesh Kumar, Member (Technical)
Final Order No .53109/2014 /Dated:24.07.2014.
Per Rakesh Kumar:
The issue involved in the present case is as to whether education cess and secondary and higher education cess is leviable on the oil cess being collected from the appellant in terms of the provisions of Section 15 of the Oil Industries Development Act, 1974. The department being of the view that education cess and secondary and higher education cess is leviable on the oil cess, has confirmed the demand of Rs.21,80,957/- along with interest vide order dated 3.6.2011 passed by the Addl. Commissioner . This order of the Addl. Commissioner was confirmed by the Commissioner (Appeals) vide order-in-appeal dated 8.5.2013 against which this appeal has been filed.
2. Heard both the sides.
3. Shri Monish Panda, Advocate, ld. Counsel for the appellant pleaded that in terms of the provisions of section 91 read with section 93 of the Finance Act, 2004 and Section 136 read with section 138 of the Finance Act, 2007, the education cess and secondary and higher education cess is leviable on the aggregate of all duties of excise, including special duty of excise or any other duty of excise but excluding education cess and S & H cess, which are levied by the Ministry of Finance, Department of Revenue under the provisions of Central Excise Act, 1944 or under any other law for the time being is forcing and that the oil cess being levied under Section 15 of the Oil Industries Development Act is levied by the Ministry of Petroleum & Natural Gas and hence, on this cess, education cess and secondary and higher education cess cannot be charged. He also cited the judgement of the Tribunal in the case of Sahakari Khand Udyog Mandli Ltd. Vs. CCE, Daman 2008 (232) ELT 61 (Tribunal-Ahmd.), wherein it was held that sugar cess being levied by Ministry of Consumer Affairs cannot be included in the aggregate of the duties of excise for the purpose of levy of education cess. This decision of the Tribunal has been upheld by Honble Gujarat High Court vide judgment reported in 2011 (263) ELT 34 (Gujarat). He, therefore, pleaded that the impugned order is not sustainable.
4. Shri Yashpal Sharma, Ld. Departmental Representative defended the impugned order by reiterating the findings of the Commissioner (Appeals).
5. We have considered the submissions from both the sides and perused the records. In terms of the provisions of Section 91 read with section 93 of the Finance Act, 2004 and Section 136 read with section 138 of the Finance Act, 2007, for the purpose of charging education cess and secondary and higher education cess, the excise duty would include only those cess levied as duty of excise, which are levied by the Ministry of Finance, Department of Revenue. Since the oil cess is levied by the Ministry of Petroleum, even though it is collected by the Ministry of Finance as excise duty, the same can not be included in the duty of excise for the purpose of education cess. Same view has been taken by the Gujarat High Court in the case of Sahakari Khand Udyog Mandli Ltd. (supra). In view of this, the impugned order is not sustainable. The same is set aside. The appeal is allowed.
(Archana Wadhwa) Member (Judicial) (Rakesh Kumar ) Member (Technical) Ckp.
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