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2015 (11) TMI 464 - CESTAT MUMBAI

2015 (11) TMI 464 - CESTAT MUMBAI - TMI - Refund of education cess - area based exemption - whether the appellants are entitle for refund in respect of Education cess and Secondary and Higher Education Cess paid through cash under Notification No. 56/2002-CE dated 14/11/2002 - Held that:- Education Cess is in nature of piggy back of duty which could not operate in respect of excise duty exempted under the relevant law. When the entitlement to exemption of duty of excise or additional duty of exc .....

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e 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 against Order-in- Appeal No. SB/44-47/LTU/MUM/2010 dtd. 3/3/2010 passed by the Commissioner (Appeals) Central Excis .....

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condary and Higher Education cess as it exempt only basic excise duty. Therefore refund available under the notification is limited to basic excise duty only and not to the education cess and Secondary and Higher education cess. Aggrieved by the said order in original the appellant filed appeal before the Commissioner (Appeals) on the ground that the issue is squarely covered by the Tribunal judgment in the case of Bharat Box Factory Ltd. Vs. Commissioner of C. Ex., Jammu [2007(214) ELT 534(Tri .....

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d. 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. S .....

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assed. The Revenue could not obtain any stay against the order of this Tribunal in their SLP bearing No. 31298/08. I observed that this Tribunal is heavily burdened with huge pendency of appeals. There is no provisions that if either litigant approached to the higher forum in a finding case without any stay matter, this Tribunal keep the identical matters in abeyance. In my view wheel of justice should not stop, therefore I do not find any reason that why appellant should suffer despite order of .....

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portion of excise duties which were exempted, given by the Commissioner (Appeals) and adopted by the learned Authorized Representatives 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 .....

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e (Goods of Special Importance) Act, 1957 and Additional Duties of Excise (Textiles and Textile Articles) Act, 1978, but also in respect of all other excise duties which are levied and collected by the Union Finance Ministry under any other law for the time being in force. Inclusion of the provisions of Section 93 of the Finance Act, 2004 in the Notification would have created an exemption from levy of Education Cess even in the context of excise duties payable under the other laws in respect of .....

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is granted, would stand exempted. 8.2 In our opinion, there was no need for including the provisions relating to Education Cess in the nature of excise duty required to be levied and collected under Section 93 of the Act in the said Notification, because the Education Cess was in the nature of piggy back duty, which would not operate in respect of the excise duty exempted under the relevant law. Moreover, inclusion of the said provisions of Section 93 of the Finance Act, 2004 in the said Notifi .....

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der the said three Acts, but for such exemption. It cannot, therefore, be said that Education Cess cannot be refunded because there was no provision for its refund in Paragraph 2 of the said Notification. It became refundable because the exemption became operative. 9.For the foregoing reasons, it is evident that when the exempted amount of duty was required to be refunded for operationalising the exemption, Education Cess, which was in the nature of piggy back duty on the excise duties under the .....

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as under: 7. I have perused the record and have considered the submissions made by both sides. 8. A careful perusal of sub-rule 7(b) makes it clear that the limitation placed in that sub-rule, is in regard to the utilisation of Cenvat credit obtained through education cess paid on inputs. That sub-rule has no application at all in regard to utilisation of credit of basic excise duty. Provision relating to utilisation of basic excise duty credit is to be found in sub-rule (4) of Rule 3 of Cenv .....

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