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2020 (8) TMI 608 - GAUHATI HIGH COURTExemption from education cess & 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 SRD Nutrients Pvt. Ltd. Vs. Commissioner of Central Excise, Guwahati [2017 (11) TMI 655 - SUPREME COURT] wherein 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 09.06.2020 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 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 [2019 (12) TMI 286 - SUPREME COURT] would render the refund made to the petitioner to be erroneous - As agreed upon list the matter on 06.10.2020 for further consideration. Till the next date fixed, the recovery of the higher education cess already refunded by the department to the petitioner shall not be recovered.
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