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2018 (5) TMI 1403 - AT - Central ExciseRefund claim - rejection on the ground that the assessee has availed Cenvat credit of basic excise duty for payment of Education Cess and Higher Education Cess - Whether the Respondent can utilise basic excise duty for payment of education cess/higher education cess or not? - Held that: - The issue of payment of education cess/higher education cess through basic excise duty has been decided in the case of Hon’ble High Court of Gauhati in the case of Union of India Vs. Kamakhya Cosmetics & Pharmaceutical Pvt. Ltd. [2012 (7) TMI 902 - GAUHATI HIGH COURT] wherein the Hon’ble High Court has held that basic excise duty can be utilised for payment of education cess/ higher education cess - decided in favor of respondent. Whether the Respondent is entitled to claim refund of Education Cess/Higher Education Cess paid in cash, in terms of N/N. 56/2002-CE dated 14.11.2002 or not? - Held that: - issue of refund of education cess/higher education cess has been dealt by the Hon’ble Apex Court in the case of SRD Nutrients Pvt. Ltd. vs. CCE, Guwahati [2017 (11) TMI 655 - SUPREME COURT OF INDIA], wherein the Hon’ble Apex Court held that the Education Cess/higher education cess arises on account of payment of duty, therefore, the refund claim is admissible of education cess/ higher education cess in terms of Notification No. 56/2002-CE dated 14.11.2002 - decided in favor of respondent. Whether the interest for the intervening period can be demanded/adjusted or recovered from the Respondent, without issuance of the SCN? - Held that: - the issue is of short payment of duty on the premises that as the goods had been cleared to their sister unit and they are required to pay duty as per CAS- 4, whatever the duty could have been paid by the Respondent is entitled to refund of the same - it is a revenue neutral situation, therefore, on that account also payment is of interest is not required to be adjusted by the authorities below - decided in favor of respondent. Appeal dismissed - decided against Revenue.
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