The Chennai bench of the Customs, Excise & Service Tax Appellate Tribunal ( CESTAT ) has held that clean energy cess on custom duty is includable in the calculation of customs educational cess and higher education cess.
Chemplast Sanmar Ltd, the appellant filed two Bills of Entry both dated 27.07.2011 for clearance of 51700 MTs and 33000 MTs of Steaming (Noncoking) coal in bulk. On finalization of the assessment, the adjudicating authority included the clean energy cess i.e. Rs.50 per MT with the Basic Customs Duty for the calculation of Customs Education Cess and Higher Education Cess and demanded differential duty of Rs.77,550/- and Rs.4,950/- with interest.
It was contended by the appellant that as per Section 83 (3) of Chapter VII, Section 83 (5) of Chapter VII of the Finance Act, 2010, Section 94 of the Finance Act, 2004, Section 138 & Section 139 of the Finance Act, 2007 read with Notification No.28/2010CE and No.29/2011-CE both dated 22.06.2010, imported coal would not attract Customs Education Cess and Higher Education Cess.
Further argued that the adjudicating had erred by including the clean energy cess component with Basic Customs Duty for calculation of Customs Educational Cess and Higher Education Cess.
It was observed that as per Section 84 (2) of the Finance Act, 2004, the Education Cess on imported goods shall be in addition to any other duties of customs chargeable on such goods, under the Customs Act, 1962.
A Coram comprising of Mrs Sulekha Beevi C S, Member (Judicial) and Mr Vasa Seshagiri Rao, Member (Technical)observed that Education Cess levied under Section 81(1) of Finance Act, 2004 on imported goods specified in First Schedule to the Customs Tariff Act, 1975 into India at the rate of 2% on the aggregate duty of Customs levied under Section 12 of Customs Act, 1962 as per Section 84 (1) read with Section 84 (2) of Finance Act, 2004 will also levy on Clean Energy Cess as being part of an aggregate of Customs.
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