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2023 (3) TMI 888 - HC - Central ExciseRefund of CENVAT duty paid - Section 114 read with Order XLVII Rule 1 of the CPC - collecting education cess and higher education cess on such goods which were exempt from payment of excise duty - HELD THAT:- The taxpayer having set up a manufacturing unit in the State of Tripura availed the benefit of duty exemption on the goods cleared from such manufacturing and pursuant to the Government of India policy to encourage industrial investment and growth in North Eastern region. The taxpayer contended that since the basic duty of excise was not payable, the additional charge of education cess and higher education cess also cannot be collected. Based on the decision of the Supreme Court in case of SRD Nutrients [2017 (11) TMI 655 - SUPREME COURT], the petitioners made refund claims for refund of education and higher education cess. Such refund application was allowed by the Assistant Commissioner. However, soon thereafter, in the decision in case of Unicorn Industries [2019 (12) TMI 286 - SUPREME COURT] the Supreme Court held and observed that the decision in case of SRD Nutrients was per incuriam. The review petitioners has submitted that department has already moved an application for modification of the judgment rendered in the case of SRD Nutrients Pvt. Ltd. According to him, the Hon’ble Apex Court has issued notice and the Assessee has filed its counter. Bajaj Auto has also moved an intervener application. It is the endeavour of the Union to bring SRD in line with Unicorn, which is a larger Bench judgment delivered subsequently and holding both SRD Nutrients and Bajaj Auto to be Per Incuriam. Let the Hon’ble Supreme Court allow the modification application, then the ration in SRD would also get modified. The matter shall be argued before Hon’ble bench shortly. Hence, the present review petition have been filed against the judgment dated 12.01.2021 with a specific prayer that the matter may be adjourned sine dine till the modification application is decided by the Hon’ble Apex Court. The ground as raised by the review petitioner is not satisfactory and hence, the prayer made in this review petition stands rejected - the present review petition stands dismissed.
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