Customs Appeal No. 12 of 2006. Case: Commissioner of Customs (Export) Vs Reliance Industries Ltd.. High Court of Bombay (India)
| Case Number | Customs Appeal No. 12 of 2006 |
| Counsel | For Appellant: Shri A.S. Rao, Adv. and For Respondent: Shri J.C. Patel, Ms. Shilpa Balani i/b. Junnarkar & Associates. |
| Judges | S.C. Dharmadhikari and S.P. Deshmukh, JJ. |
| Issue | Customs |
| Citation | 2015 (322) ELT 121 (Bom) |
| Judgement Date | March 13, 2015 |
| Court | High Court of Bombay (India) |
Order:
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This appeal by the revenue challenges the order passed on 7th August, 2005 by the Customs, Excise and Service Tax Appellate Tribunal [2005 (188) E.L.T. 449 (Tri. - Mum.)].
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The revenue appealed to the Tribunal against the order dated 6th December, 2004, that was delivered by the Commissioner of Customs (Appeal), Mumbai.
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This appeal has been admitted on the following substantial questions of law.
(a) Whether the CESTAT is vested with powers or has jurisdiction to hold and declare that notification/circulars issued by the Board are inconsistent to legislature?
(b) Whether Education Cess is leviable on imports made under DEPB Scheme as per Finance (No. 2) of 2004 read with Board''s Circular No. 5/2005, dated 31-1-2005?
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The Counsel appearing for both sides have addressed us on Question 2(b). In their submission, same would suffice for disposal of this appeal.
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The respondent-assessee filed about 16 bills of entries for the purpose of assessment of various goods imported by them and claimed benefit of Notification No. 45/02-Customs, dated 22nd April, 2004. On finalization of the assessment, the benefit of this notification was extended to all the bills of entries inter alia, exempting duties leviable subject to the conditions that the duties leviable were debited from the relevant pass book under a scheme known as DEPB Scheme. The Education Cess at 2% on these duties was also debited from the duties of DEPB as per clause of the Finance Bill, 2004.
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The respondent protested against the debit of education cess by submitting various letters addressed to the Assistant Commissioner of Customs. They did not insist on issuance of show cause notice. However, they did not get satisfactory solution and therefore, preferred an appeal. That appeal has been allowed, inter alia, holding that debit of education cess and in terms DEPB Scheme so also exemption notification was impermissible in law.
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The Tribunal has upheld this view in the impugned order.
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The Tribunal has in dealing with this controversy referred extensively to the salient features of the DEPB Scheme, relevant provisions of the Finance Act, 2004 and the Exemption Notification dated 22nd April, 2002. The Tribunal has held as under:-
"We find that the DEPB Scheme operates under an exemption Notification No. 45/2002-Customs, dated 22nd April, 2002. The said notification specifically exempts goods imported under DEPB Scheme from basic, additional and special additional duties of...
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