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2021 (10) TMI 484 - HC - Central ExciseRecovery of refunded earlier, deposited by each of the petitioners as Education Cess and Secondary and Higher Education Cess - erroneous refund or not - case of the petitioners (manufacturers) was that Education Cess and Higher Education Cess was part of excise duty and since they have been exempted from excise duty they are also liable to be exempted from paying Education Cess and Higher Education Cess and as excise duty has been returned to them, the amount paid by them as Education Cess and Higher Education Cess is also liable to be returned to them. HELD THAT:- What amounts to be paid erroneously has been explained by another Division Bench of this Court in the case of Rajendra Singh -Vs- Superintendent of Taxes & Ors. [1989 (7) TMI 317 - GAUHATI HIGH COURT]. Though it relates to the Tripura Sales Tax Act, 1976, but the principle would be the same. In para 10 of the said judgment, it has been held that an erroneous order would be one which has been passed without any authority of law or which has been passed by an authority without making an enquiry - To our mind an erroneous refund would also be a refund which has been made by an order which is without jurisdiction. All the same, such is not the case here in the present matters. To summarize the basic argument of the respondents would be that irrespective of the fact that M/s SRD Nutrients Private Limited [2017 (11) TMI 655 - SUPREME COURT] has been declared as per incuriam, the matter has attained finality between the parties, inasmuch as, the order passed by the Revenue for refund of the amount has not been challenged, nor has the order of the learned Single Judge, by which the learned Single Judge has directed that in view of the M/s SRD Nutrients Private Limited the amount should be refunded, been taken in writ appeal before this High Court. The matter having attained finality, it cannot be now opened at this stage even though M/s SRD Nutrients Private Limited has been declared as per incuriam, in the case of M/s Unicorn Industries. We agree with the submissions of the learned counsels for the assessees/petitioners that, under the facts and circumstances of the case, the amount refunded to them cannot be recovered, as it was not refunded to them erroneously, but it was returned to them for the reason that it was the requirement of law; law as it stood at the relevant time. The matter having attained finality cannot be re-opened for the reason that the earlier law has been declared to be “per incuriam”. Appeal of Revenue dismissed.
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