Dismissed

Commissioner of Customs and Central Excise v. M/s. Kedia Overseas Limited

Telangana HC9 Oct 2012CEA/71/2010

Case brief

AI extract

What is this about?

The Court dismissed Revenue appeals against Tribunal orders which favored exporters. Citing a prior Supreme Court decision (CEA No. 53 of 2011), the Court held that Education Cess is not leviable on duty debited from DEPB scrips, even where the customs exemption notification was interim.

What did the court decide?

Appeals dismissed with no costs awarded. Education Cess held not leviable on DEPB imports.

Commissioner of Customs and Central Excise Vs M/s. Kedia… — Corruption | Telangana HC (2012)

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THE HONOURABLE SRI JUSTICE GODA RAGHURAM

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AND THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO

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CEA Nos. 148,21,22,23,26,27,28,31,32,40,41,71,82,83,84,102 and 103 of 2010 and CEA No.71 of 2009

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Dated: 09-10-2012

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Between: Commissioner of Customs and Central Excise, Visakhapatnam And M/s Kedia Overseas Limited, rep. by its Managing Director, Hyderabad.

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…Appellant

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…Respondent.

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THE HONOURABLE SRI JUSTICE GODA RAGHURAM AND THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO

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CEA Nos. 148,21,22,23,26,27,28,31,32,40,41,71,82,83,84,102 and 103 of 2010 and CEA No.71 of 2009

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Common Judgment (Per Hon’ble Sri Justice Goda Raghuram)

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These 18 appeals involve a similar question of law and are accordingly disposed of by a common order, after hearing the learned counsel for the appellant/Revenue-the Commissioner of Customs and Central Excise, Visakhapatnam-II Commissionerate, Visakhapatnam. Notice before admission was ordered in these appeals. Notices have since been served on the respondents. There is however no representation on behalf of the respondents when the matter is taken up today for disposal.

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The respondents/assessees are manufacturers of Edible Refined Oil. They imported Crude Palm Oil under various Bills of Entry by discharging the duty liability through DEPB scrips as per the Notification No.45/2002-Cus. Dated 22-4-2002. The Bills of Entry of the assessee were provisionally assessed and the payment of customs duty discharged through debits made in the DEPB scrip. Education Cess at the rate of 2 per cent on the customs duty was also charged and collected from the appellants by the Revenue. The assessee sought finalization of assessment of the Bills of Entry and deletion of Education Cess on the payment/debit made to the DEPB scrips. However the assessment was finalized retaining the levy of Education Cess, based on Circular No.5/2005-Cus. Dated 31-1-2005 issued by the Central Board of Excise and Customs which clarified

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that wherever imports are under the DEPB Scheme, though the import was governed by an exemption notification, in fact duty on such imports debited from the DEPB scrips and consequently imports under the DEPB Scheme would be liable to Education Cess at 2 per cent, also to be debited from the DEPB scrips.

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Aggrieved by the Assessment/Orders-in-Original passed, the assessee preferred appeals to the Commissioner of Customs, Central Excise and Service Tax (Appeals), Visakhapatnam. The appeals were allowed in so far as the levy of Education Cess is concerned. The Commissioner (Appeals) followed orders of the CESTAT, Bangalore dated 10-8-2007 and concluded that Education Cess is not leviable in respect of the duty imports under DEPB Scheme.

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Aggrieved by the orders of the Appellate Authority allowing the assessee’s appeals, Revenue preferred Customs Appeal Nos. 796 to 813 of 2009 to the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Bangalore (for short ‘the Tribunal). In Final Order Nos. 586 to 603 of 2009, the Tribunal, by the order dated 30-4-2009, dismissed the appeals relying on its earlier decision dated 28-11-2007 in Final Order No. 1347 of 2008 which had followed two decisions of the Tribunal in Ruchi Health Foods Ltd. v. CC, Cochin (2007 (81) RLT 309 (Bangalore) and in CC (Exports), CC, Mulmbai v. Reliance Industries Ltd (2005 (71) RLT 681 (Mumbai). In all the decisions, the Tribunal consistently propounded the view that Education Cess is not leviable in respect of duty free import under DEPB Scheme.

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These appeals under Section 130 of the Customs Act, 1962 are preferred by the Revenue against the common order of the Tribunal dated 30-4-2009 as stated above.

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It requires to be noticed that by the judgment dated 31-3-2011 this Court in CEA No. 53 of 2011 dismissed the appeal of the Revenue preferred in respect of the same assessee (as in these appeals) after referring to the contention of the Revenue that Education

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Cess is leviable in respect of the imports under the DEPB Scheme in view of the Circular dated 31-5-2005 issued by the Central Board of Excise and Customs.

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In the light of the decision of this Court dated 31-3-2011 in CEA No. 53 of 2011 and for the reasons alike as recorded therein, these appeals are misconceived and accordingly dismissed. No costs.

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_________________________ GODA RAGHURAM, J

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9^th October, 2012

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_______________________________ M.S.RAMACHANDRA RAO, J

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GRR

Commissioner of Customs and Central Excise v. M/s. Kedia Overseas Limited

Case brief

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Commissioner of Customs and Central Excise v. M/s. Kedia Overseas Limited

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