Page 184 - ELT_1st August 2020_Vol 373_Part 3

366 EXCISE LAW TIMES [ Vol. 373

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 education cess on imported goods as they apply in relation to levy and collec-
tion of duties of customs on such goods under the Customs Act, 1962 or the rules
made thereunder, as the case may be.
21. Section 134 of the Finance Act, 2003 whereby National Calamity
Contingent Duty of Customs came to be levied has already been reproduced
hereinabove. Sub-section (4) of Section 134 of the Finance Act, provides 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.
22. Thus, there are similar provisions relating to NCCD as in the case of
Secondary and Higher Education Cess. Vide Circular No. 4/2019-Cus. (Instruc-
tion), dated 11th October, 2019, the CBEC has issued certain clarifications,
whereby it has been clarified that Section 136 of the Finance Act, 2007 which lev-
ies Secondary and Higher Education Cess (SHE), and Section 110 of the Finance
Act, 2018 which levies Social Welfare Surcharge (SWS), as a duty of Customs
provide that the rules and regulations made thereunder including those relating
to refunds, exemptions etc. shall apply to these levies. Further, these cesses are
factored in the calculation of all-industry rates of duty drawback by the Draw-
back Committee. Therefore, the elements of these cesses are required to be fac-
tored in Brand Rate of duty drawback. The very circular further provides that in
case of Stowage Excise Duty which is levied under Section 6 of the Coal Mines
(Conservation and Development) Act, 1974 as a duty of Excise and equivalent
duty of Customs on imported coal under Section 7 of the Act, the Act does not
make applicable any of the provisions like refund, drawback, etc. of the Central
Excise Act or Customs Act to the said levies, therefore, those levies cannot be
considered for inclusion in the calculation of duty drawback on any export
goods.
23. At this stage, reference can be made to a Circular No. 106/95-Cus.,
dated 11-10-1995, wherein, the CBEC has clarified that anti-dumping duty which
is leviable under Section 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.
Since, anti-dumping duty is not taken into consideration while fixing all-industry
rate of drawback, the drawback of such anti-dumping duty can only be claimed
under an application for brand rate under Rule 6 or Rule 7 of the Customs and
Central Excise Duties Drawback Rules, 1995.
24. Thus, in the case of anti-dumping duty, the Board has clarified that
it is rebatable as drawback in terms of Section 75 of the Customs Act. Section 75
provides for allowing a drawback of the duties of customs chargeable under that
Act.
25. The facts of the present case may be examined in the light of the
clarifications issued by the CBEC in the circulars referred to hereinabove. NCCD
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