Page 177 - ELT_1st August 2020_Vol 373_Part 3

2020 ] COMMISSIONER OF CUSTOMS v. NAYARA ENERGY LTD. 359

9A of the Customs Tariff Act read with Section 12 of the Customs Act is rebatable
as drawback in terms of Section 75 of the Customs Act. Placing reliance upon
various circulars, the Commissioner (Appeals) held that, as per Section 75 of the
Customs Act, the drawback is admissible inasmuch as Notification No. 37/95-
Cus. (NT), dated 26-5-1995 under which Drawback Rules have been notified, has
been issued under Section 75 of the Customs Act, 1962. He, accordingly, found
that Board’s Circular No. 11/2005-Cus., dated 3-3-2005, wherein it has been clari-
fied that education cess which is being levied @ 2% of aggregate duties of cus-
toms needs to be factored in the brand rate would be squarely applicable to
NCCD.
6.3 The Tribunal has dismissed the appeals on the ground of maintain-
ability.
7. Insofar as proposed questions No. 2 to 4 as regards maintainability
of the appeal under Section 129A of the Customs Act are concerned, no submis-
sions have been made in connection with the said questions; hence, the Court
does not find appropriate to deal with the same and leaves those questions open
to be agitated in some other matter.
8. The short question that arises for consideration in the present case is
whether National Calamity Contingent Duty of Customs (NCCD) levied under
Section 134 of the Finance Act, 2003, is a Customs duty and whether NCCD can
be considered for computing brand rate eligibility?
9. Section 134 of the Finance Act, 2003, reads thus :
134. National Calamity Contingent Duty of Customs. - (1) In the case
of goods specified in the Seventh Schedule to the Finance Act, 2001 (14 of
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 Contin-
gent Duty of Customs (hereinafter referred to as the National Calamity Du-
ty of Customs), at the rates specified in the said Seventh Schedule, as
amended by the Thirteenth Schedule.
(2) The National Calamity Duty of Customs chargeable on the goods spec-
ified in the Seventh Schedule to the Finance Act, 2001 (14 of 2001) as
amended by the Thirteenth Schedule shall be in addition to any other du-
ties of Customs chargeable on such goods under the Customs Act or any
other law for the time being in force.
(3) For the purposes of calculating the National Calamity Duty of Cus-
toms under this section on any goods specified in the Seventh Schedule to
the Finance Act, 2001 (14 of 2001) as amended by the Thirteenth Schedule,
where such duty is leviable at any percentage of its value, the value of such
goods shall be calculated in the same manner as the value of article for the
purposes of additional duty is calculated under the provisions of sub-
section (2) of Section 3 of the Customs Tariff Act.
(4) 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 un-
der this 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
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