Page 173 - ELT_1st August 2020_Vol 373_Part 3

2020 ] COMMISSIONER OF CUSTOMS v. NAYARA ENERGY LTD. 355

issue, does not lie before the Tribunal. While disposing the appeals the Tribunal
observed that the revenue may consider moving the correct forum, if they are
advised to do so.
4. Mr. Parth Divyeshwar, Learned Senior Standing Counsel for the ap-
pellant, submitted that Section 2 of the Act defines the term ‘duty’ as duty of
Customs leviable under the Customs Act, which makes it apparent that NCCD,
which is levied under Section 134 of the Finance Act, 2003, is not a duty of cus-
toms and, hence, duty incidence of NCCD cannot be considered for computing
the brand rate eligibility as NCCD is not specified for fixation of brand rate. It
was submitted that Section 75 of the Customs Act stipulates that a drawback
should be allowed of duties of Customs chargeable under that Act on any im-
ported materials subject to the rules made under sub-section (2). It was contend-
ed that the Drawback Rules have been framed under Section 75 of the Customs
Act and thus, the scope of the Drawback Rules has been restricted to the provi-
sions contained in Section 75 of the Customs Act and drawback can be allowed
only of duties levied under that Act. According to the Learned Senior Standing
Counsel, since NCCD is levied under the Finance Act, 2003, the provisions of
Section 75 of the Customs Act would not apply and that NCCD not being a Cus-
toms duty for the purpose of granting drawback under Section 75 of the Customs
Act, the Additional Commissioner, Central Excise, Rajkot, has rightly held that
no duty incidence on account of NCCD can be considered for computing the
brand rate eligibility as NCCD is not specified for fixation of brand rate; and that
the Commissioner (Appeals) was not justified in holding to the contrary.
5. On the other hand, Mr. Mihir Joshi, Senior Advocate, Learned Coun-
sel for the respondent, invited the attention of the Court to the provisions of Sec-
tion 12 of the Customs Act, which provides that except as otherwise provided in
that Act, or any other law for the time being in force, duties of Customs shall be
levied at such rates as may be specified under the Customs Tariff Act, 1975 (51 of
1975), or any other law for the time being in force, on goods imported into, or
exported from India. It was submitted that thus the term “duty of customs” also
includes any duty of Customs levied under any other law for the time being in
force.
5.1 It was pointed out that NCCD has been levied under Section 134 of
the Finance Act, 2003, sub-section (1) whereof provides that, in the case of goods
specified in the Seventh Schedule to the Finance Act, 2001, as amended by the
Thirteenth Schedule, being goods imported into India, there shall be levied and
collected for the purposes of the Union, by surcharge, a duty of Customs, to be
called the National Calamity Contingent Duty of Customs at the rates specified
in the said Seventh Schedule, as amended by the Thirteenth Schedule. It was
submitted that, therefore, NCCD is a duty of Customs and hence, would fall
within the ambit of the expression “duties of Customs” as envisaged in Section
12 of the Customs Act. Reference was made to the decision of the Supreme Court
in the case of Bajaj Auto Limited v. Union of India, 2019 (366) E.L.T. 577 (S.C.),
wherein, the legal question involved was regarding liability towards NCCD, Ed-
ucation Cess and Secondary & Higher Education Cess of a manufacturing estab-
lishment, which was exempted from payment of Central Excise duty under the
Central Excise Act, 1944. Insofar as NCCD is concerned, the Court recorded that
while the Education Cess, Secondary & Higher Education Cess are concerned,
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