TMI Blog2006 (9) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... the Notification, goods produced in the specified area are exempt from "duty of excise or additional duty of excise". The manner of giving effect to the exemption notification is that an eligible manufacturer first discharges duty on the goods and then files monthly refund applications for the refund of the duty paid and after due verification, eligible refund is allowed. It is a condition that "the manufacturer first utilizes the whole of Cenvat credit available to him on the last day of the month ..........and pays only the balance amount in cash." The amount of duty paid in cash is liable to be refunded. 3.The appellant filed claims for refund of duty paid in cash during the months of September 2005 and October 2005. Out of amounts cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any duty of excise. It is the contention of the learned counsel that, in the present case, appellant had utilised the credit taken on basic excise duty for the purpose of payment of education cess and that utilisation is clearly within the provisions of sub-rule (4) of Rule 3 and restriction placed in sub-rule 7(b) has no application to it. As regards the objection that the education cess is not a duty of excise, reliance is placed by the appellant on Section 93 of the Finance Act, 2004. Sub-section (1) of that Section states that the education cess levied under Section 91 "shall be a duty of excise". The submission is that this declaration in the section levies no room for doubt as to whether education cess is a duty of excise for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 duty by cash (after fully exhausting the Cenva ..... X X X X Extracts X X X X X X X X Extracts X X X X
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