BAJAJ AUTO LIMITED versus UNION OF INDIA & ORS.
[2019] 5 S.C.R. 139, Supreme Court of India, 2019
Outcome: Appeal(s) allowed (Granted)
Segment: Issues
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 BAJAJ AUTO LIMITED
v.
                                UNION OF INDIA & ORS.
 (Civil Appeal No.3239 of 2019)
 MARCH 27, 2019
[L. NAGESWARA RAO AND SANJAY KISHAN KAUL, JJ.]
Central Excise Act, 1944 – Central Excise Tariff Act, 1985 –
National Calamity Contingent Duty (NCCD), Education Cess and
the Secondary & Higher Education Cess – Liability of – Appellant-
limited company was exempted from, inter alia, Central Excise Duty
(CENVAT) under the second schedule of the Act, 1985 – Appellant
was not paying National Calamity Contingent Duty, Education Cess
and Secondary & Higher Education Cess – Dispute arose pertaining
to the liability of the appellant to pay three cesses referred – An
audit objection report was prepared on account of the failure of
the appellant to pay the aforementioned three cesses – A show cause
notice was given to the appellant – Writ petition filed by the appellant
before the High Court against the show cause notice was dismissed
– On appeal, held: The issue of the Education Cess and the
Secondary & Higher Education Cess is covered by the SRD Nutrients
Pvt. Ltd. case, which held that these cesses are a surcharge levied
and collected on the total value of the excise duty and the excise
duty itself is exempted, there cannot be any question of any recovery
of these cesses, as the substratum does not exist – Therefore,
appellant not liable to pay the Education Cess and the Secondary
& Higher Education Cess – Insofar as NCCD is concerned, it
is
levied on the product – However, it is in nature of excise duty – It
has to bear the same character as those respective taxes to which
the surcharge is appended – NCCD will not cease to be an excise
duty, but is the same as an excise duty, even if it is levied on the
product – Once the excise duty is exempted, NCCD, levied as an
excise duty cannot partake a different character and, thus, would
be entitled to the benefit of the exemption notification – Thus,
appellant not liable to pay NCCD as well – Finance Act, 2001 –
s.136 – Finance Act, 2004 – ss. 91 and 93 – Finance Act, 2007 –
ss.136 and 138.
      [2019] 5 S.C.R. 139
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Allowing the appeal, the Court
HELD: 1.  The controversy before this Court is now in a
narrow compass, on account of the subsequent judicial
pronouncement in SRD Nutrients Pvt. Ltd. v. Commissioner of
Central Excise, Guwahati.  The issue of the Education Cess and
the Secondary & Higher Education Cess, is covered against the
Department in view of this judgment and that is how, also, the
Department appears to have understood now, in view of the
written synopsis placed before this Court. In the facts of that
case, there was an initiative for development of industries in the
North-Eastern States of Assam, Tripura, Meghalaya, Mizoram,
Manipur, Nagaland, Arunachal Pradesh, etc.  A Notification
exempting goods from payment of excise duties was issued in
respect of those States.  Education Cess and Secondary & Higher
Education Cess, as imposed under the Finance Acts of 2004 and
2007, respectively were also sought to be levied on the appellant
therein.  The gravamen of the reasoning of this Court is that
since these cesses are a surcharge levied and collected on the
total value of the excise duty, and the excise duty itself is
exempted, there cannot be any question of any recovery of these
cesses, as the substratum does not exist.  Not only that, this
Court also took into account how the Department itself had viewed
the situation regarding Education Cess and Secondary & Higher
Education Cess, which are payable as surcharge on
the excise
duty, once the excise duty is exempted. The Circular dated
10.08.2004 issued by the Department also clarified this position.
Therefore, the result of the aforesaid discussion is that the
appellant is not liable to pay Education Cess and Secondary &
Higher Education Cess. [Paras 12, 13 and 24] [146-G; 151-A]
3.  The real bone of contention which survives for
consideration is the NCCD.  The reason for this is that while the
two cesses discussed aforesaid were in the nature of levy on the
excise duty payable, the NCCD is levied on the product itself, as
per Section 136 of the Finance Act, 2001.  It is this aspect, inter
alia, which was canvassed by the Department to persuade this
Court to take a different view from the one taken qua the other
two cesses.  [Para 16] [149-A-B]
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4.  On a proper appreciation of the judicial pronouncement
in SRD Nutrients Pvt. Ltd., this Court is not inclined to take a
different view from the one taken for Education Cess and
Secondary & Higher Education Cess, even while considering the
issue of NCCD. [Para 21] [150-C]
5.  In SRD Nutrients Pvt. Ltd. gave its imprimatur to the
view expressed by the Rajasthan High Court in Banswara Syntex
Ltd.  The rationale is that while there may be surcharges under
different financial enactments to provide the Government with
revenue for specified purposes, the same have been notified as
leviable in the nature of a particular kind of duty.  In the case of
NCCD, it is in the nature of an excise duty.  It has to bear the
same character as those respective taxes to which the surcharge
is appended.  NCCD will not cease to be an excise duty, but is
the same as an excise duty, even if it is levied on the product.
Thus, when NCCD, at the time of collection, takes the character
of a duty on the product, whatever may be the rationale behind it,
it is also subject to the provisions relating to excise duty,
applicable to it in the manner of collection as well as the
obligation of the taxpayer to discharge the duty.  Once the excise
duty is exempted, NCCD, levied as an excise duty cannot
partake a different character and, thus, would be entitled to the
benefit of the exemption notification. The exemption
notification also states that the exemption is from the “whole of
the
duty of excise or additional duty of excise.” Thus, the
appellant would not be liable to pay the NCCD. [Paras 22, 23]
[150-D-G]
SRD Nutrients Pvt. Ltd. v. Commissioner of Central
Excise, Guwahati (2018) 1 SCC 105 : [2017] 11 SCR
43 – relied on.
Banswara Syntex Ltd. v. Union of India  (2007) SCC
OnLine Raj  365 – approved.
Novopan India Ltd., Hyderabad v. CCE and Customs,
Hyderabad  (1994) 3 Suppl. SCC 606 : [1994] 3 Suppl.
SCR 549; Union of India v. Wood Papers Ltd.
(1990) 4 SCC 256 : [1990] 2 SCR  659 – referred to.
 BAJAJ AUTO LIMITED v.  UNION OF INDIA & ORS.
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 Case Law Reference
[2017] 11 SCR 43
       relied on
Para 12
[1994] 3 Suppl. SCR 549     referred to
Para 19
[1990] 2 SCR  659
       referred to
Para 20
CIVIL APPELLATE JURISDICTION: Civil Appeal No.3239 of
2019.
From the Judgment and Order dated 16.03.2017 of the High Court
of  Uttarakhand, at Nainital in Special Appeal No. 625 of 2014.
Mukul Rohatgi, Arvind Datar, Sr. Advs., Arshak Hidayatullah,
Mahesh Agarwal, Ankul Saigal, Makarand Joshi, Divyang Chandiramani,
E. C. Agrawala Advs. for the Appellant.
ANS Nadkarni, ASG, K. Radhakrishna, Sr. Adv., Devashish
Bharuka, Ms. Nisha Bagchi,  B. Krishna Prasad, Advs. for the
Respondents.
The Judgment of the Court was delivered by
SANJAY KISHAN KAUL, J. 1. Leave granted.
2. The appeal raises the legal question of the liability towards
National Calamity Contingent Duty (for short ‘NCCD’), Education Cess
and Secondary & Higher Education Cess of a manufacturing
establishment, which is exempted from payment of Central Excise Duty
(for short ‘CENVAT’) under the Central Excise Act, 1944 (hereinafter
referred to as the ‘1944 Act’).
3. In order to encourage development of industries and to
generate employment in the States of Uttarakhand and Himachal Pradesh,
certain special measures were considered appropriate to be taken by
the Government of India.  On the visit of the Prime Minister of India to
Uttarakhand, in March, 2002, an announcement was made that tax and
Central Excise
concessions, to attract investments in the industrial
sector will be worked out for the Special Category States including
Uttaranchal (now Uttarakhand).  The industries eligible for such
incentives were to be environment friendly, with potential for local
employment generation and use of local resources.  Subsequently, an
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Office Memorandum was issued on 7.1.2003, announcing a package of
incentives providing for “New Industrial Policy and other concessions
for the State of Uttaranchal and the State of Himachal Pradesh.”  Para
3.1 (I) stipulated the fiscal incentives.  It is not necessary to reproduce
the complete paragraph, but suffice to reproduce the relevant portion as
under:
“3.1: Fiscal Incentives to new Industrial Units and to
existing units on their substantial expansion:
(I). New industrial units and existing industrial units on their
substantial expansion as defined, set up in Growth Centres,
Industrial Infrastructure Development Centres (IIDCs), Industrial
Estates, Export Processing Zones, Theme Parks (Food Processing
Parks, Software Technology Parks, etc.) as stated in Annexure-I
and other areas as notified from time to time by the Central
Government, are entitled to :
(a) 100% (hundred percent) outright excise duty exemption for a
period of 10 years from the date of commencement of commercial
production.
(b) 100% income tax exemption for initial period of five years and
thereafter 30% for companies and 25% for other than companies
for a further period of five years for the entire states of Uttarakhand
and Himachal Pradesh from the date of commencement of
commercial production.”
   (emphasis supplied)
4. In order to implement the aforesaid policy initiative, the Central
Board of Excise & Customs (for short ‘CBEC’) issued Notification
No.50/2003-Central Excise,
dated June 10, 2003, in exercise of powers
conferred under Section 5A of the 1944 Act.  The relevant portion of the
Notification reads as under:
“GENERAL EXEMPTION NO. 41
Exemption to goods other than specified goods cleared from units
located in the Industrial Growth Centre or Industrial Infrastructure
Development Centre or Export Promotion Industrial Park or
Industrial Estate or Industrial Area or Commercial Estate or
Scheme Area of Uttarakhand and Himachal Pradesh.—In
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[SANJAY KISHAN KAUL, J.]
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exercise of the powers conferred by sub-section (1) of section
5A of the Central Excise Act, 1944 (1 of 1944) read with sub-
section (3) of section 3 of the Additional Duties of Excise (Goods
of Special Importance) Act, 1957 (58 of 1957) and sub-section
(3) of section 3 of the Additional Duties of Excise (Textiles and
Textiles Articles) Act, 1978 (40 of 1978), the Central Government,
being satisfied that it is necessary in the public interest so to do,
hereby exempts the goods specified in the First Schedule and the
Second Schedule to the Central Excise Tariff Act, 1985 (5 of
1986), other than the goods specified in Annexure-I appended
hereto, and cleared from a unit located in the Industrial Growth
Centre or Industrial Infrastructure Development Centre or Export
Promotion Industrial Park or Industrial Estate or Industrial Area
or Commercial Estate or Scheme Area, as the case may be,
specified in [Annexure-II and Annexure III] appended hereto,
from the whole of the duty of excise or additional duty of excise,
as the case may be, leviable thereon under any of the said Acts.
(emphasis supplied)
5. Once again, for the controversy in question, it is not necessary
to refer to the notification further, which stipulates other conditions to be
fulfilled, to avail of the benefit of the exemption notification, since there
is no dispute that the appellant satisfies those conditions.
6. The appellant, a limited company,
established a manufacturing
unit of two wheeler vehicles in the year 2007.  The appellant was
exempted from, inter alia, CENVAT, by virtue of its manufactured
products falling under the Second Schedule of the Central Excise Tariff
Act, 1985.
7. The appellant was apparently paying an automobile cess, but
the NCCD, Education Cess and Secondary & Higher Education Cess
were not being paid.  The dispute arose on account of an audit
conducted on 27/28.2.2009.  The dispute pertains to the liability of the
appellant to pay the unpaid three cesses referred to aforesaid.
8. Now turning to the three cesses in question, NCCD was
imposed under Section 136 of the Finance Act, 2001, in the nature of a
duty of excise, in addition to any other duties of excise chargeable under
the 1944 Act.  The relevant portion is extracted as under:
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“S. 136- National Calamity Contingent Duty
(1) In the case of goods specified in the Seventh Schedule, being
goods manufactured or produced, there shall be levied and collected
for the purposes of the Union, by surcharge, a duty of excise, to
be called the National Calamity Contingent duty (hereinafter
referred to as the National Calamity duty), at the rates specified
in the said Schedule.
(2) The National Calamity duty chargeable on the goods specified
in the Seventh Schedule shall be in addition to any other duties of
excise chargeable on such goods under the Central Excise Act,
1944 or any other law for the time being in force.
(3) The provisions of the Central Excise Act, 1944 and the rules
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 leviable under this section in respect of the goods
specified in the Seventh Schedule as they apply in relation to the
levy and collection of the duties of excise on such goods under
that Act or those rules, as the case may be.”
   (emphasis supplied)
9. Sections 91 & 93 of the Finance Act, 2004 introduced the
Education Cess as a duty of excise calculated on the aggregate of all
duties of excise.  Sections 136 & 138 of the Finance Act of 2007
similarly imposed Secondary & Higher Education Cess, on the same
pattern as the Education Cess.
10. As noticed above, on
account of the audit conducted of the
appellant, an audit objection report was prepared on account of the
failure of the appellant to pay the aforementioned three cesses, and
consequent queries were raised vide letter dated 27.2.2009, by the
Superintendent (Audit), Central Excise Meerut-II on the appellant. These
were responded to, by the appellant. This was followed by a show cause
notice dated 26.8.2011.  It is relevant to note that in terms of the show
cause notice, the cesses were being so demanded on account of the fact
that they had not been specifically exempted, even though they were a
duty in the nature of excise, whether leviable on the product (NCCD) or
on the amount of excise duty payable (Education Cess and Secondary
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& Higher Education Cess). The Department took a legal stand that the
exemption notification had to be construed strictly and that there had
been wilful suppression of facts.  The demand raised was also
specified.
11. The appellant filed a writ petition under Article 226 of the
Constitution of India, before the High Court of Uttarakhand on 13.10.2011,
assailing the show cause notice. This endeavour, however, did not
succeed and the writ petition was dismissed by the learned Single Judge,
vide order dated 9.10.2014.  The appeal preferred before the Division
Bench also met the same fate, vide impugned order dated 16.3.2017.
12. The controversy before us is now in a narrow compass, on
account of the subsequent judicial pronouncement in SRD Nutrients
Pvt. Ltd. v. Commissioner of Central Excise, Guwahati1.  The issue
of the Education Cess and the Secondary & Higher Education Cess, in
our view, is covered against the Department in view of this judgment
and that is how, also, the Department appears to have understood now,
in view of the written synopsis placed before us.
13. In the facts of that case, there was an initiative for
development of industries in the North-Eastern States of Assam, Tripura,
Meghalaya, Mizoram, Manipur, Nagaland, Arunachal Pradesh, etc.  A
Notification exempting goods from payment of excise duties was issued
in respect of those States.  Education Cess and Secondary & Higher
Education Cess, as imposed
under the Finance Acts of 2004 and 2007,
respectively were also sought to be levied on the appellant therein.  The
gravamen of the reasoning of this Court is that since these cesses are a
surcharge levied and collected on the total value of the excise duty, and
the excise duty itself is exempted, there cannot be any question of any
recovery of these cesses, as the substratum does not exist.  Not only
that, this Court also took into account how the Department itself had
viewed the situation regarding Education Cess and Secondary & Higher
Education Cess, which are payable as surcharge on the excise duty,
once the excise duty is exempted.  The Circular dated 10.8.2004 issued
by the Department clarified the position in this behalf as under:
“Issue (2): Whether goods that are fully exempted from excise
duty/customs duty or are cleared without payment of excise duty/
1(2018) 1 SCC 105
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customs duty (such as clearance under bond or fulfilment of
certain conditions) would be subjected to cess.
Clarification: The education cess is leviable at the rate of two per
cent of the aggregate of all duties of excise/customs (excluding
certain duties of customs like anti-dumping duty, safeguard duty,
etc.), levied and collected. If goods are fully exempted from excise
duty or customs duty, are chargeable to nil duty or are cleared
without payment of duty under specified procedure such as
clearance under bond, there is no collection of duty. Thus, no
education cess would be leviable on such clearances. In this regard,
letter D.O. No. 605/54/2004-DBK, dated 21-7-2004 issued by
Member (Customs) may also be referred to.”
  (emphasis supplied)
14. It was observed by this Court as under:
“22. Even otherwise, we are of the opinion that it is more rational
to accept the aforesaid position as clarified by the Ministry of
Finance in the aforesaid circulars. Education cess is on excise
duty. It means that those assessees who are required to pay excise
duty have to shell out education cess as well. This education cess
is introduced by Sections 91 to 93 of the Finance (No. 2) Act,
2004. As per Section 91 thereof, education cess is the surcharge
which the assessee is to pay. Section 93 makes it clear that this
education cess is payable on “excisable goods” i.e. in respect of
goods specified in the First Schedule to the Central Excise Tariff
Act, 1985. Further,
this education cess is to be levied @ 2% and
calculated on the aggregate of all duties of excise which are levied
and collected by the Central Government under the provisions of
the Central Excise Act, 1944 or under any other law for the time
being in force. Sub-section (3) of Section 93 provides that the
provisions of the Central Excise Act, 1944 and the Rules made
thereunder, including those related to refunds and duties, etc. shall
as far as may be applied in relation to levy and collection of
education cess on excisable goods. A conjoint reading of these
provisions would amply demonstrate that education cess as a
surcharge, is levied @ 2% on the duties of excise which are
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[SANJAY KISHAN KAUL, J.]
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payable under the Act. It can, therefore, be clearly inferred that
when there is no excise duty payable, as it is exempted, there
would not be any education cess as well, inasmuch as education
cess @ 2% is to be calculated on the aggregate of duties of excise.
There cannot be any surcharge when basic duty itself is nil.”
  (emphasis supplied)
15. A reference was also made to the judgement of the Rajasthan
High Court, in Banswara Syntex Ltd. v. Union of India2, where it has
been observed as under:
“15. The very fact that the surcharge is collected as part of levy
under three different enactments goes to show that scheme of
levy of education cess was by way of collecting special funds for
the purpose of Government project towards providing and financing
universalised quality of basic education by enhancing the burden
of Central excise duty, customs duty, and service tax by way of
charging surcharge to be collected for the purpose of the Union.
But, it was made clear that in respect of all the three taxes, the
surcharge collected along with the tax will bear the same character
of respective taxes to which surcharge was appended and was to
be governed by the respective enactments under which education
cess in the form of surcharge is levied and collected.
16. Apparently, when at the time of collection, surcharge has taken
the character of parent levy, whatever may be the object behind
it, it becomes subject to the
provision relating to the excise duty
applicable to it in the manner of collecting the same obligation of
the tax payer in respect of its discharge as well as exemption
concession by way of rebate attached with such levies. This
aspect has been made clear by combined reading of sub-sections
(1), (2) and (3) of Section 93.”
  (emphasis supplied)
This Court gave its imprimatur to the aforesaid judgment of the
Rajasthan High Court, in para 24 of the judgment in SRD Nutrients Pvt.
Ltd.3
2 2007 SCC OnLine Raj 365 :: (2007) 216 ELT 16
3 (supra)
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16. The real bone of contention which survives for consideration
is the NCCD.  The reason for this is that while the two cesses discussed
aforesaid were in the nature of levy on the excise duty payable, the
NCCD is levied on the product itself, as per Section 136 of the Finance
Act, 2001.  It is this aspect, inter alia, which was canvassed by the
Department to persuade this Court to take a different view from the one
taken qua the other two cesses.
17. On behalf of the appellant, Mr. Mukul Rohatgi and Mr. Arvind
Datar, learned Senior Advocates sought to persuade us to apply the
same principles qua NCCD as the other two cesses and, thus, go along
with the view taken in SRD Nutrients Pvt. Ltd.,4 even insofar as NCCD
is concerned.
18. On the other hand, on behalf of the Department, Ms. Nisha
Bagchi, Advocate sought to contend otherwise by seeking to point out
the difference in the nature of incidence, since NCCD was to be calcu-
lated on the value of the product and not on the value of the excise duty
payable.
19. We may note that in terms of the impugned judgment, one
principle which clearly emerges, and over which there is no dispute be-
fore us, also, is that exemption notifications, like the one in question must
be read in a manner that give them a liberal interpretation, provided that
no violence is done to the language employed.  The rationale for the
same is well enunciated in Novopan India Ltd., Hyderabad v. CCE
and Customs, Hyderabad,5 apart from in
other judicial pronouncements.
In such cases, it is not as if the principle of strict interpretation of tax law
has been given a complete go by, but that rule of interpretation would
apply at a different stage, i.e., to determine whether the exemption is
applicable to the assessee or not.  Once such exemption is indeed found
to be applicable to the assessee in question, a liberal approach is to be
adopted by the Court in construing the language, such as to allow the
benefit to be reaped by the beneficiary in question (Union of India v.
Wood Papers Ltd.6).
20. We may notice that the primary reasoning contained in the
impugned order is common for the three cesses, i.e., NCCD; Education
4 (supra)
5 1994 Supp (3) SCC 606
6(1990) 4 SCC 256
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Cess and Secondary & Higher Education Cess.  These were in the
nature of surcharges levied in other Acts, which have not been specifi-
cally excluded under the Notification in question.  That reasoning does
not prevail, more so because of the judgment in SRD Nutrients Pvt.
Ltd.7  The question, thus, is whether, even though the NCCD is in the
nature of an excise duty, its incidence being on the product, rather than
on the value of the excise duty, that itself would make any difference to
the applicability of the NCCD to excise exempt units.
21. On a proper appreciation of the judicial pronouncement in
SRD Nutrients Pvt. Ltd.,8 we are not inclined to take a different view
from the one taken for Education Cess and Secondary & Higher Edu-
cation Cess, even while considering the issue of NCCD.
22. We may notice that this Court, in SRD Nutrients Pvt. Ltd.9
gave its imprimatur to the view expressed by the Rajasthan High Court
in Banswara Syntex Ltd.10  The rationale is that while there may be
surcharges under different financial enactments to provide the Govern-
ment with revenue for specified purposes, the same have been notified
as leviable in the nature of a particular kind of duty.  In the case of
NCCD, it is in the nature of an excise duty.  It has to bear the same
character as those respective taxes to which the surcharge is appended.
NCCD will not cease to be an excise duty, but is the same as an excise
duty, even if
it is levied on the product.  Thus, when NCCD, at the time
of collection, takes the character of a duty on the product, whatever
may be the rationale behind it, it is also subject to the provisions relating
to excise duty, applicable to it in the manner of collection as well as the
obligation of the taxpayer to discharge the duty.  Once the excise duty is
exempted, NCCD, levied as an excise duty cannot partake a different
character and, thus, would be entitled to the benefit of the exemption
notification.  The exemption notification also states that the exemption is
from the “whole of the duty of excise or additional duty of excise.”  We
may also note that the exemption itself is for a period of ten years from
the date of commercial production of the unit.
23. We are, thus, of the view that the appellant would not be liable
to pay the NCCD.
7 (supra)
8 (supra)
9 (supra)
10 (supra)

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24. The result of the aforesaid discussion is that the impugned
orders are set aside and the show cause notice dated 26.8.2011 is quashed
while holding that the appellant is not liable to pay NCCD, Education
Cess and Secondary & Higher Education Cess.
25. The appeal is allowed, leaving the parties to bear their own
costs.
Ankit Gyan
                                                Appeal allowed.
 BAJAJ AUTO LIMITED v.  UNION OF INDIA & ORS.
[SANJAY KISHAN KAUL, J.]