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Customs Appeal Nos.75431,75432,75267-75268, 75269-75279, 75295-75314, 75315-74334, 75280 -75294, 75352-75364, 75335-75351, 75433-75440/2020,75849/2023,75151/2024 75835-75846/2023, 76145/2024, 75821,75823-75827, 75829-75834, 75847-75848/2023, 76146,76147/2024, 75134-75146,75159, 75161 -75174,75177-75192,75253- 3.6 It is his further submission that the jurisprudence available in the context of quantification Education Cess (EC) and Secondary and Higher Education Cess (SHEC) (which are also in the nature of surcharges) in case of imports against other duty credit scrips (DEPB and Target Plus) fully supports the case of the Appellant.

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Customs Appeal Nos.75431,75432,75267-75268, 75269-75279, 75295-75314, 75315-74334, 75280 -75294, 75352-75364, 75335-75351, 75433-75440/2020,75849/2023,75151/2024 75835-75846/2023, 76145/2024, 75821,75823-75827, 75829-75834, 75847-75848/2023, 76146,76147/2024, 75134-75146,75159, 75161 -75174,75177-75192,75253- 3.8 Further, it is submission that in the context of goods imported against Notifications operationalizing DEPB and Target Plus Scheme, dealing with a similar question of quantification of EC and SHEC, a consistent view has been taken by various High Courts and the Hon'ble Apex court. Reliance in this regard is being placed on the following judgements:

dated 17.09.2004 as also the Circular dated 31.01.2005 as is evident from the judgement of the Hon'ble Madras High Court in the case of DCW Limited (supra). Further, the conditions as regards entitlement of drawback and CENVAT Credit of duties debited to the scrips had also fallen before consideration before the Hon'ble Tribunal in the case of Bhushan Steel & Strips Limited (supra) in the context of goods imported against Target Plus Scrips and the Hon'ble Tribunal held that the said conditions did not alter the factum of BCD having been exempted under the said Notification No. 32/2005 dated 08.04.2005. Therefore, there is no basis for the Ld. Appellate Commissioner to hold the view that BCD in fact was not exempted.

(b)......

(c).....

(d).....

Therefore, SWS is required to be quantified @ 10% with reference to specified duties of customs, which are not only levied but also collected by the Ministry of Finance. In the facts of the present case, it is not in dispute that the Appellant had imported goods by availing the benefit of Notification No. 24/2015 and Notification No. 25/2015 ('the said notifications') and fulfilled the conditions thereunder. It is the case of the Appellant that under the said notifications issued in exercise of the powers to grant exemption under Section 25 of the Customs Act, 1962, BCD stands exempted albeit subject to the condition inter alia of a debit to the MEIS/SEIS scrip (as the case may be) of the BCD leviable on the goods but for the exemption. Since there is no actual collection of BCD in view of the exemption, the Appellant argues that no SWS can be levied and collected with reference to notional BCD under Section 110(3) of the Finance Act, 2018 extracted (supra). The contention of the revenue, on the other hand, is that debit of BCD to the scrip under the said notifications is an alternate mode of payment and not an exemption perse so as to justify the computation of SWS. However, we find that BCD amount is conspicuously reflected as "zero" in the BOEs filed availing the said notifications, which is not in consonance with the contention of the revenue that BCD is collected in case of goods imported under the said notifications The Hon'ble Supreme Court in the Somaiya Organics Case (supra) has held in no un-certain terms Customs Appeal Nos.75431,75432,75267-75268, 75269-75279, 75295-75314, 75315-74334, 75280 -75294, 75352-75364, 75335-75351, 75433-75440/2020,75849/2023,75151/2024 75835-75846/2023, 76145/2024, 75821,75823-75827, 75829-75834, 75847-75848/2023, 76146,76147/2024, 75134-75146,75159, 75161 -75174,75177-75192,75253- that the expression "collection" in the context of tax laws would mean "physical realization of tax" where as in the instant case, the Appellate Commissioner has himself accepted at para 28 of the impugned orders that no money representing BCD goes to the exchequer under the said notifications meaning thereby that the test of "physical realization of lax is clearly not met and the debit of BCD to the scrip is at best a notional collection of tax when the said notifications are read in entirety. Moreover, a similar condition of debit to the duty credit scrips as prevalent in the notifications operationalizing the DEPB scheme and the Target Plus Scheme had fallen for consideration of various High Courts and Tribunal in the following cases in the context of levy and collection of EC imposed by the Finance (No. 2) Act, 2004: