(1.) In this appeal filed by appellant-revenue challenging order dated 26.8.2008 made by Customs. Excise & Service Tax Appellate Tribunal (the Tribunal), following questions of law have been proposed stated to be substantial questions of law :-
(2.) Learned Counsel for the appellant submitted that education cess is leviable at the prescribed rate on the aggregate of all duties of excise and therefore, would also include the cess levied and collected under the provisions of Sugar Cess Act. 1982 (the Cess Act). That the Tribunal has committed an error in law in placing reliance on the notification issued by Ministry of Consumer Affairs. Food & Public Distribution for holding that as the sugar cess is not levied by Department of Revenue. Ministry of Finance, sugar cess cannot be considered for the purpose of levying and computing education cess. That the Tribunal has wrongly placed reliance on decisions of Chennai Bench of the Tribunal referred to in the impugned order. Referring to provisions of sub-Section (2) of the Cess Act, it was submitted that what is levied under sub-Section (1) of the Cess Act is the duty of excise and hence, when read in conjunction with sub-Section (3) and sub-Section (4) of Section 3 of the Cess Act, it was apparent that the amount was collected as part and parcel of duty of excise under the provisions of the Central Excise Act, 1944 and the Rules made thereunder (the Excise Act).
(3.) As can be seen from the impugned order of Tribunal, it is recorded that the notification to levy sugar cess has been issued by Ministry of Consumer Affairs, Food & Public Distribution. The Tribunal has also referred to circular dated 10.8.2004 issued by Ministry of Finance clarifying that education cess is to be calculated on the aggregate duties of excise/customs levied and collected by Department of Revenue and only such duties which are levied and collected as duties of excise and customs and are levied and collected by Department of Revenue, should be taken into account for calculating education cess. The Tribunal has thereafter referred to two different decisions of Chennai Bench. On the basis of aforesaid findings, it is held that though sugar cess is levied as duty of excise, the same is not levied by Ministry of Finance and hence, in light of clarification by the Board, the same cannot be taken into account for calculating the education cess.