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TMI Blog2013 (2) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... nsformers. Their unit is located in the area specified under Notification No. 56/2002-C.E. and as such they are availing of the benefit of this exemption notification. In respect of HV/LV Coils made by the respondent, which were being used in the repair of transformers, they were paying Central Excise duty and to the extent the duty was being paid through PLA, they were getting its refund in terms of Notification No. 56/2002-C.E. According to the department in view of Tribunal's judgment in the case of Punjab State Electricity Board v. CCE, Chandigarh reported in 1995 (76) E.L.T. 313 (Tribunal), which has been upheld by the Apex Court vide judgment reported in 1996 (83) E.L.T. A106 (S.C.), the HV/LV Coils are not goods and as such are not e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p;Shri R.K. Verma, the Learned Departmental Representative, pleaded that so far as the issue as to whether Notification No. 56/2002-C.E. is applicable to education cess and higher education cess, the same stands decided against the respondent by the judgment of the Tribunal in the case of CCE, Jammu v. Jindal Drugs Ltd. reported in 2011 (267) E.L.T. 653 (Tri.-Del.), wherein the Tribunal after taking note of the earlier judgment of Single Bench in the case of Bharat Box Factory Ltd. v. CCE, Jammu (supra) held that Notification No. 56/2002-C.E. does not cover Education cess and Higher Education cess, that the Tribunal's judgment in the case of CCE, Jammu v. Jindal Drugs Ltd. (supra) is in accordance with the ratio of the judgment of the Apex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Dr. A.S. Gill, Advocate, the learned Counsel for the respondent, pleaded that Notification No. 56/2002-C.E. is applicable in respect of education cess and higher education cess also, that since the cess is levied as a percentage of the basic excise duty payable, when basic excise duty is fully exempt, the cess would also be fully exempt, that in this regard he relies upon the judgment of the Tribunal in the case of Bharat Box Factory Ltd. v. CCE, Jammu (supra), that as regards refund of duty paid on HV/LV Coils, the duty had been correctly paid and the refund had been correctly granted, as HV/LV Coils are excisable items, that in this regard, the Commissioner (Appeals) has correctly relied upon the Tribunal's judgment in the cases o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on No. 56/2002-C.E. does not cover the education cess. The Tribunal judgment in the case of Bharat Box Factory Ltd. v. CCE, Jammu (supra) relied upon by the learned Counsel of the respondent is only a Single Member Bench judgment and the same has not considered the Apex Court's judgment in the case of Union of India v. Modi Rubber Ltd. (supra). In view of this, we hold that the Commissioner (Appeals)'s order permitting the benefit exemption under Notification No. 56/2002-C.E. in respect of education cess and Secondary and higher education cess is not correct and the same is liable to be set aside. 7. As regards, the second point of dispute as to whether HV/LV Coils are excisable and whether the duty paid on the same is refundable in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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