Page 175 - ELT_1st August 2020_Vol 373_Part 3

2020 ] COMMISSIONER OF CUSTOMS v. NAYARA ENERGY LTD. 357

126 of the Finance Act, 2007 as a duty of Customs/Excise and SWS is levied un-
der Section 110 of the Finance Act, 2018 as a duty of Customs. These provide that
provisions of the Customs Act, 1962 and the Central Excise Act, 1944 and rules
and regulations made thereunder, including those relating to refunds, exemp-
tions etc. shall apply to these levies. It was pointed out that the instructions fur-
ther clarify that in the case of Stowage Excise Duty, it is levied under Section 6 of
the Coal Mines (Conservation and Development) Act, 1974 as a duty of excise
and an equivalent duty of Customs is levied on imported coal under Section 7 of
the said Act. However, the Act does not make applicable any of the provisions
like refund, drawback etc. of Central Excise Act or Customs Act to the aforesaid
levies. Therefore, these levies cannot be considered for inclusion in the calcula-
tion of duty drawback on any export goods. It was submitted that insofar as
NCCD is concerned, sub-section (4) of Section 134 of the Finance Act, 2003 pro-
vides that the provisions of the Customs Act and the rules and regulations made
thereunder, including those relating to refunds and exemptions from duties and
imposition of penalty, shall, as far as may be, apply in relation to the levy and
collection of the National Calamity Duty of Customs leviable under that section
in respect of the goods specified in the Seventh Schedule to the Finance Act, 2001
(14 of 2001) as amended by the Thirteenth Schedule, as they apply in relation to
the levy and collection of the duties of Customs on such goods under that Act, or
those rules and regulations, as the case may be. The Learned Counsel for the re-
spondent submitted that, therefore, the provisions in respect of the NCCD are
similar to the provisions in respect of Secondary and Higher Education Cess, and
hence, the elements of NCCD are required to be factored in Brand Rate of duty
drawback. It was submitted that, therefore, the Commissioner (Appeals) has
rightly held that the NCCD, levied under Section 134 of the Finance Act, 2003, is
eligible to be considered for computing brand rate eligibility under the Draw-
back Rules. It was further submitted that Section 134 of the Finance Act, 2003 is
an inclusive term which includes refund etc. and hence, drawback cannot be ex-
cluded from the scope of refund. It was accordingly, urged that the appeal being
devoid of merits deserves to be dismissed.
5.3 It may be noted that on the very same day that the judgment in this
case was first dictated, it appears that the Supreme Court in the case of M/s Uni-
corn Industries v. Union of India rendered on 6th December, 2019 in Civil Appeal
No. 9237 of 2019 [2019 (370) E.L.T. 3 (S.C.)], found that before the Division Bench
deciding SRD Nutrients Private Limited and Bajaj Auto Limited (supra) the previ-
ous binding decisions of three-judge Benches in Union of India v. Modi Rubber
Limited, (1986) 4 SCC 66 = 1986 (25) E.L.T. 849 (S.C.) and Rita Textiles Private Lim-
ited v. Union of India, (1986) SCC Supp.557 = 1988 (35) E.L.T. 611 (S.C.), were not
placed for consideration. Thus, the decisions in SRD Nutrients Private Limited and
Bajaj Auto Limited (supra) are clearly per incuriam.
5.4 The Learned Counsel for the respondents submitted that drawback
is a drawback of all duties of customs. It is not under the Excise Act. In Union of
India v. Modi Rubber Limited (supra), the exemption granted was only of excise
duties under the Excise Act. Referring to clause (a) of sub-section (2) of Section 75
of the Customs Act, it was pointed out that the same provides for making rules
providing for the payment of drawback equal to the amount of duty actually
paid on the imported materials used in the manufacture or processing of goods
EXCISE LAW TIMES  1st August 2020  175