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2020 (8) TMI 293 - HC - Central ExciseExemption of Education Cess & Secondary and Higher Education Cess - whether in view of the exemption granted to the excise duty the petitioner would also be entitled to an exemption to the payment of Education Cess & Secondary and Higher Education Cess? - HELD THAT:- The said question was decided by the Supreme Court inits pronouncement in SRD Nutrients Pvt. Ltd. Vs. Commissioner of Central Excise, Guwahati [2017 (11) TMI 655 - SUPREME COURT ] wherein in paragraph 27 of the said judgment it was held that the appellants therein were entitled to refund of education cess and higher education cess which was paid along withthe excise duty once the excise duty itself was exempted from levy. In view of the subsequent judgment of the Supreme Court in Unicorn Industries [2019 (12) TMI 286 - SUPREME COURT ] the respondent authorities had issued the demand cum show cause notice dated 02.06.2020 to the petitioners by which a question was raised that the earlier refund of the Education Cess & Secondary and Higher Education Cess given to them has now become erroneous refunds and therefore, a recovery be made under section 11(A-1) of the Central Excise Act 1944 - The demand cum show-cause notice dated 02.06.2020 is assailed in this writ petition on the ground that the condition precedent to invoke the power under section 11(A-1) is that the refund made must be erroneous - the condition precedent of section 11(A-1) of the Excise Central Act, 1944 is not satisfied. A question for determination would be as to whether the proposition of law laid down in Unicorn Industries (supra) would render the refunds made to the petitioners to be erroneous. Until further orders we stay the operation of the demand cum show-cause notice dated 02.06.2020 - List on 08.09.2020.
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