TMI Blog2015 (11) TMI 464X X X X Extracts X X X X X X X X Extracts X X X X ..... of Finance Act, 2004. Education cess not to be refunded as no provisions or it returns in notification ibid is not sustainable. In view of the above settled legal position, I am of the considered view that the appellant is entitle for the refund of education cess and secondary and higher education cess paid on clearances of the goods under Notification No. 56/2002-CE. Therefore orders in appeal are set aside - Decided in favour of assessee. - APPEAL NO. E/706, 707, 708, 709,/10-MUM - - - Dated:- 24-6-2015 - Mr. Ramesh Nair, Member (Judicial) For the Petitioner : Shri Sachin Chitnis, Advocate For the Respondent : Shri V.K. Shastri, Asstt. Commissioner (A.R.) ORDER Per : Ramesh Nair These appeals are directed agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeal of the appellant despite considering the judgment of this Tribunal in the case of Bharat Box Factory Ltd. Merely by filing the appeal before the Hon ble Supreme Court, the judgment of this Tribunal cannot be ignored. The revenue in their SLP filed before the Honble Supreme Court could not obtain any stay till date. In this regard, he placed status of the case before the Supreme Court which shows pending and no stay was granted. In view of this position, he submits that following the ratio of this Tribunal in the case of Bharat Box Factory Ltd. (supra) these appeals may be allowed. 4. Shri V.K. Shastri, Ld. Asstt. Commissioner (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He submits th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presentatives for the Department, that there was no mention of the provisions of Education Cess in the nature of excise duty leviable under Section 93 in the said Notification, would be self-defeating and counter-productive, as will be seen hereafter. 8.1 If the provisions of Chapter VI of the Finance Act, 2004 relating to levy and collection of Education Cess in the nature of excise duty were included along with the three Acts in the said Notification, unintended adverse consequences would follow for the Revenue. It is clear from the wordings of Section 93 that the Education Cess in the nature of excise duty which is required to be levied and collected at the rate of 2% of the aggregate of all duties of excise would be applicable not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty exempted under the relevant law. Moreover, inclusion of the said provisions of Section 93 of the Finance Act, 2004 in the said Notification would have led to an anomalous situation as indicated above. It would also to be noticed that the refund contemplated in Paragraph 2 of the Notification in the context of statement of duty paid in cash, has no relevance with any Education Cess in the nature of excise duty, because the provisions of the Notification, including the manner of giving effect to the exemption contained thereunder, were devised only in the context of the excise duties which otherwise would have been payable under the said three Acts, but for such exemption. It cannot, therefore, be said that Education Cess cannot be refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty credit. Therefore, the finding in the original order that sub-rule 7(b) was attracted to the present case is not sustainable. 9. The objection taken that education cess is not a duty of excise is also not sustainable in the light of the declaration contained in Section 93(1) of the Finance Act. That apart, the proposition that cess paid on goods produced in India is excise duty remains confirmed by the decision of this Tribunal in the case of TTK LIG Ltd. Therefore, the objection taken by the first appellate authority is also not in terms of law. Apart from these is the fact that the appellant s claims are not in relation to any payment of education cess on manufactured goods. Its claims are in relation to payment of basic excise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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