Page 189 - ELT_15th May 2020_VOL 372_Part 4th

2020 ] COMMISSIONER OF CUSTOMS, TUTICORIN v. SAKTHI SUGARS LTD. 579

that the respondents have paid the cess at the time of filing the Bill of Entry un-
der protest. The marking of protest itself gives information to the department
that there is requirement for reassessment. Assessment under Section 17 of Cus-
toms Act, 1962 cannot be said to be finalized when respondent has marked the
protest while paying duty. In case, respondents had paid the entire duty without
any mark of protest, in order to claim refund they have to request for reassess-
ment of Bill of Entry. The mark of protest is an information to the department
that the respondent is not making payment of cess voluntarily and then depart-
ment has to initiate proceedings to vacate protest and pass speaking order for
reassessment. If the department fails to do so the respondents cannot be put to
any disadvantage of rejecting the refund claim. We find the first ground raised
by the Ld. A.R cannot sustain and deserves to be brushed aside.
8. The second issue is whether cess paid by the respondent is eligible
for refund. The discussions made by Commissioner (Appeals) in para 4.1 is
noteworthy. The same is reproduced as under :
“4.2 Further the Hon’ble CESTAT in the case of M/s. Andhra Pradesh Paper
Mills Ltd. v. CCE reported in 2009 (235) E.L.T. 474 (Tri.-Bang.) held that
“paper cess is levied by the department of Industrial Development, Minis-
try of Commerce and Industry and hence it is not duty of excise”. The
Hon’ble Tribunal in the case of M/s. Tafe Ltd. v. Commissioner reported in
2008 (222) E.L.T. 80 (T) held that “the automobile cess is levied and collect-
ed by the Department of Heavy Industry. Thus automobile cess was not
considered as duty of excise”. Further, the Hon’ble Tribunal in the case of
M/s. Shakari Khand Udyog Mandli Ltd. v. CCE reported in 2008 (232) E.L.T. 61
(T) held that “Sugar cess is levied by Ministry of Consumer Affairs, Food
and Public Distribution and is not levied by Ministry of Finance though it is
collected as “duty of excise” by the Department of Revenue and hence as
per CBEC’s Letter No. 345/2/2004-TRU, dated 10-8-2004 such cess is not
duty of excise”. In the present appeal, the sugar cess is levied by the Minis-
try of Consumer Affairs and not to be regarded as duty and not levied by
the Ministry of Finance. Therefore the Sugar Cess is not leviable on the im-
ported raw sugar and is leviable on the sugar manufactured by the sugar
units in India only.”
9. It is also mentioned by the Commissioner (Appeals) that the Board
has clarified in a letter dated 10-8-2004 that cess is not a duty of excise. Though
there may be decisions in which it is held that sugar cess is also duty of excise,
the circular issued by the Board is binding on the department. Therefore the de-
cision placed before us by the Ld. A.R contending that sugar cess is also duty of
excise and therefore payable by the respondent does not find favour with us. We
do not find any grounds to interfere with the reasoned order passed by the
Commissioner (Appeals). The appeal filed by the department is therefore dis-
missed being devoid of merits.
(Operative part of the order pronounced in Court)

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EXCISE LAW TIMES  15th May 2020  189