TMI Blog2012 (9) TMI 707X X X X Extracts X X X X X X X X Extracts X X X X ..... Sharma, J. REPRESENTED BY : Shri S. Renganathan, Counsel, for the Petitioner. Shri B. Ravichandran, for the Respondent. [Order]. The petitioner M/s. Loyal Textile Mills Ltd., Kovilpatti, has invoked the extraordinary jurisdiction of this court, under Article 226 of the Constitution of India, with a prayer, for issuance of a writ, in the nature of certiorari, for quashing order passed by the respondent No. 1, dated 28-4-2006, declining the claim of the petitioner, for the refund of education cess. 2. The petitioner is engaged in manufacture of Cotton Yarn and Polyester Cotton Yarn, falling under Chapter Heading 52 of Central Excise Tariff Act, 1985. The petitioner pays the Central Excise duty, with respect to clearances, effected for domestic requirements, as also for the export. According to the notification of the Government, the party is entitled to rebate for all the duties and excise paid, on the goods exported. 3. Vide notification, under Section 91 and 93 of the Finance Act, 2004, education cess was levied as duty of excise, effected from 9th July 2004, as per the provisions of Clause 81, 83 and 84 of the Provisional Collection of Taxes Act, 1931. 4. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was also rejected, vide order, dated 12th September 2005. 12. The petitioner, thereafter, preferred a revision petition before the Government, under Section 35EE of the Central Excise Act, 1944. The revision petition was also dismissed. 13. The operative part of the revisional order, reads as under :- 6.4. On a careful consideration of the Notification No. 40/2001-C.E.(N.T.) dated 26-6-2001, as amended, Government, finds that the notification permits rebate of whole of the duty paid on all excisable goods falling under the First Schedule to the Central Excise Tariff Act, 1985 and explanation I further clarified duties which can be rebated. It is admitted fact that education cess is not mentioned in the explanation-I to Notification mentioned above. A plain reading of the explanation-I of the Notification 41/2001-C.E. (N.T.), dated 26-6-2001, as amended reveals that it is of restrictive nature and under Notification such duties can be rebated which have been mentioned in above said explanation of the Notification. The provisions of the said Notification regarding duties to be rebated are very clear and there is no ambiguity which requires any clarification. Similarly perusal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated. Govt., accordingly upholds the impugned Order-in-Appeal, and reject the Revision Applications. 8. So ordered. 14. The learned counsel for the petitioner, challenged the order, declining the relief of education cess to the petitioner, by contending, that the education cess is a part of Central Excise and was also paid as such. Therefore, the petitioner was entitled to the refund of Central Excise, inclusive of the education cess. 15. It is also the contention of the learned counsel for the petitioner, that in any case, if there was any doubt regarding interpretation of the notification, that stood clarified by way of explanation. 16.The explanation being explanatory in nature, was required to be read as part of original notification, and could not be treated as prospective, as held by the authorities under the Act. 17. The contention of the learned counsel for the petitioner is that the judgments, relied upon by the revisional authority in the order, has no application to the facts of this case, as the petitioner had complied with the terms of notification, and the claim raised was not by stressing the word, as was case of Tata Iron Steel Co. Ltd. v. State of Jhar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... financing universalised quality of basic education by enhancing the burden of Central Excise Duty, Customs Duty, and Service Tax by way of charging surcharge to be collected for the purpose of Union. But, it was made clear that in respect of all the three taxes, the surcharge collected along with the tax will bear the same character of respective taxes to which surcharge was appended and was to be governed by the respective enactments under which Education Cess in the form of surcharge is levied collected. 16. Apparently, when at the time of collection, surcharge has taken the character of parent levy, whatever may be the object behind it, it becomes subject to the provision relating to the Excise Duty applicable to it in the manner of collecting the same obligation of the tax payer in respect of its discharge as well as exemption concession by way of rebate attached with such levies. This aspect has been made clear by combined reading of sub-sections (1), (2) (3) of Section 93. 18. The Explanation appended to Notification dated 26-6-2001 included within the ambit of Excise Duty any Special Excise Duty collected under any Finance Act when under Finance Act, 2004 it was ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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