2020 (8) TMI 738 - GAUHATI HIGH COURT - Central Excise

Head Note / Extract:
Exemption on Education Cess and Secondary and Higher Education Cess - area based exemption availed - 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 in its pronouncement in M/S. SRD NUTRIENTS PRIVATE LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE GUWAHATI [2017 (11) TMI 655 - SUPREME COURT] wherein in paragraph 27 it was held that the appellants therein were entitled to refund of education cess and higher education cess which was paid along with the excise duty once the excise duty itself was exempted from levy. 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. It is contended when the refund was given effect during the period prior to the judgment of the Supreme Court in M/S. UNICORN INDUSTRIES VERSUS UNION OF INDIA & OTHERS [2019 (12) TMI 286 - SUPREME COURT], at that point of time the proposition laid down in SRD Nutrients Private Limited was in force which had decided in favour of such refunds. Accordingly, it is contended that when the refunds were made the law in force was that such refunds were justified under law and therefore, the refunds made were not erroneous - It being so, 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.