Custom, Excise & Service Tax Tribunal
Commissioner Of Customs (Import) vs Bhushan Steel & Strips Ltd on 27 May, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. I Appeal No. C/543 to 547/06 (Arising out of Order-in-Appeal No. 54 to 58/2006/MCH/DC/ Import/05 dated 03.02.2006 passed by Commissioner of Customs (Appeals), Mumbai I) For approval and signature: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. P.S. Pruthi, Member (Technical) ================================================
1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the 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?
Commissioner of Customs (import), Mumbai Appellant Vs. Bhushan Steel & Strips Ltd.
Respondent Appearance:
Shri A.K. Singh, Addl. Commr. (AR) for appellant Ms. Padmavati Patil, Advocate for respondent CORAM: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. P.S. Pruthi, Member (Technical) Date of Hearing: 27.05.2015 Date of Decision: 27.05.2015 ORDER NO Per: M.V. Ravindran
All these appeals are disposed of by a common order as they are pertaining to the very same assessee and on the same issue. They are also directed against the very same order-in-appeal.
2. Revenue has filed these appeals on the ground that the first appellate authority has erred in allowing the appeals of the respondent-assessee by relying upon the Ministry of Finance Clarification dated 10.8.2004.
3. Learned D.R. would draw our attention to the facts of the case. He would submit that the issue is regarding the discharge of 2% Education Cess on the goods imported under Target Plus Scheme. It is his submission that under the Target Plus Scheme, basic customs duty and additional customs duty are exempted but Education Cess is not exempted. It is his submission that 2% Education Cess has to be collected on the amount of Basic and Additional customs duty payable. He would also submit that the Revenue in the Grounds of Appeal has relied on Circular No.5/2005-Cus dated 31.1.2005 for levy and collection of 2% Education Cess on the imports and submit that the Circular No. 5/2005-Cus will apply in this case. He would also submit that provisions of Notification 32/2005-Cus dated 08.04.2005 was towards the liberalization which allows an importer to pay customs duties through the credit earned on the account of incremental growth in exports achieved by them. It is his submission that 2% Education Cess is chargeable on the aggregate duties of customs levied and collected and the customs duty it is to be paid on the goods imported needs to be worked out and Education Cess has to be charged.
4. Learned Counsel appearing on behalf of the respondent would submit that the issue is no more res integra as Circular No. 5/2005 which was relied upon by Revenue has been struck down as null and void by the Honble High Court of Gujarat in the case of Gujarat Ambuja Exports Ltd. - 2013 (289) ELT 273 (Guj). She draws our attention to the para 27 of the judgement. This judgement of the Honble High Court has been followed in the case of CC v. Pasupati Acrylon Ltd. - 293 ELT 182 wherein identical issue as is in the case before us was being considered. She produces a copy of the same and also submit that against that judgement the Special Leave Petition filed by Revenue was dismissed as reported in 2013 (297) ELT A102 (S.C.).
5. We have considered the submissions made by both sides and perused the records.
6. We find that the issue is regarding the discharge of Education Cess @ 2% on the goods imported. It is not disputed that the customs duty liability has been debited in the Target Plus licence issued. It is pertinent to mention that the first appellate authority has recorded the following:-
I have gone through the facts and submission made by the appellant. Here appellant has imported goods under the Target Plus Scheme which is exempted from Basic & Additional customs duty as per notification No.32/2005-cus. In the present case education cess has been levied by the original authority although goods have been exempted from BCD & CVD. As per clarification dated 10.08.2004 of Board (page 18 of the appeal), it has been clarified that if goods are fully exempted from customs & excise duty and chargeable to nil duty there is no collection of duty and no education charge is leviable on such clearances. In standing order No.39/2004 CCO M-II dated 03.08.2004 it has been clarified that 2% education cess shall be collected in cash only for that portion of custom duty which have been collected in cash. In the present case when neither basic custom duty nor CVD is charged on the imports, debiting education cess from the certificate issued under the scheme applicable to the appellant cannot be justified. I fail to understand inspite of clear instruction issued by the Board and further clarification issued by the Chief Commissioner which has binding on the department, cess is being charged when BCD and CVD is fully exempted or not paid in cash. Such practice not only causes unnecessary harassment to the importer but causes unnecessary litigation at all levels. Hence orders of assessment in all the aforesaid 5 Bills of Entry is set aside and, all these 5 appeals are allowed with consequential relief. It can be seen from the above reproduced findings the first appellate authority was correct to come to such a conclusion. This view of the first appellate authority and the view of this Tribunal is affirmed by the Honble High Court in the case of Pasupati Acrylon Ltd. (supra).
6.1 As regards the reliance placed on Circular No. 5/2005 we find that the learned Counsel is correct to bring to our notice that the said Circular has been struck down in the case of Gujarat Ambuja Exports Ltd. (supra). In view of factual findings and authoritative judicial pronouncements, we do not find any reason to interfere with the impugned order passed by the first appellate authority. We hold that the first appellate authority has not erred in passing such an order.
7. Impugned order is upheld as correct, legal and does not suffer from any infirmity. Appeals filed by the Revenue are rejected.
(Dictated in Court) (P.S. Pruthi) Member (Technical) (M.V. Ravindran) Member (Judicial) nsk ??
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