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TMI Blog2017 (5) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... s is chargeable to NIL rate of central excise duty and hence, the petitioners do not pay basic central excise duty on crude oil. The petitioners, however, pay Oil Industries Development Cess ("OID Cess") levied under section 15 of the Oil Industry (Development) Act, 1976 (hereinafter referred to as "the OID Act") on crude oil cleared by them. The petitioners also pay National Calamity Contingent Duty (NCCD) on crude oil under section 136 of the Finance Act, 2001. Such payments were made by the petitioners and were collected by the Department from the petitioners without any dispute. 3. The case of the petitioners is that they understood that OID Cess levied on crude oil is a duty of excise and, therefore, paid Education Cess at the rate of 2% under section 93(1) of the Finance Act, 2004 (with effect from 9.7.2004) as well as Secondary and Higher Secondary Education Cess ("SHE Cess") at the rate of 1% under section 138(1) of the Finance Act, 2007 (with effect from 1.3.2007) on the OID Cess paid by the petitioners on crude oil manufactured. During the period March, 2005 to January, 2014, the petitioners paid an amount of Rs. 19,15,11,532/- as Education Cess and SHE Cess on OID Cess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Central Excise, Division-II, Surat-II, the third respondent herein (hereinafter referred to as the "adjudicating authority"), by the impugned order-in-original dated 28.4.2015 rejected the refund claim filed by the petitioners. By the order-in-original, the third respondent granted refund of Rs. 4,22,67,238/-, out of the total refund claim of Rs. 19,15,11,532/- and rejected the remaining refund claim of Rs. 14,92,44,294/- as time barred. The refund of Rs. 4,22,67,238/- was ordered to be credited to the Consumer Welfare Fund in terms of sections 12B and 12C read with section 11B of the Central Excise Act, 1944 and accordingly, no amount was paid by way of refund. Against the said order -in- original, the petitioners went in appeal before the third respondent Commissioner (Appeals), who vide order dated 29.6.2016 rejected the appeal, giving rise to the present petition. 6. Mr. Anand Nainawati, learned advocate for the petitioners, invited the attention of the court to the decision of this court in the case of Joshi Technologies International, INC-India Projects v. Union of India, rendered on 16.6.2016 in Special Civil Application No.2556 of 2015, to submit that the controversy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hakari Khand Udyog Mandli Ltd. (supra). In the Circular dated 7th January, 2014, reference to sugar cess and tea cess levied under the Sugar Cess Act, 1982, and the Tea Act, 1953, respectively, is merely illustrative in nature and what is meant by the circular is that the cesses which are collected by the Department of Revenue, but levied under an Act which is administered by different Department are not chargeable to Education Cess and Secondary and Higher Secondary Cess chargeable under the provisions of the Finance Acts, 2004 and 2007, respectively. Education Cess and Secondary and Higher Secondary Education Cess being cesses levied at a percentage of the aggregate of all duties of excise, the basic requirement for levy thereof is the existence of excise duty. In the present case Oil Cess is not a duty of excise and hence, the basic requirement for levy of such cesses is not satisfied. Furthermore, for the purpose of levy of Education Cess and Secondary and Higher Secondary Education Cess, two other conditions precedent, are required to be satisfied, viz., (i) that the duty of excise should be levied by the Central Government in the Ministry of Finance (Department of Reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied in making the application for refund under a mistake of law and not under section 11B of the Central Excise Act, 1944. Since the provisions of section 11B of the Act are not applicable to the claim of refund made by the petitioner, the limitation prescribed under the said provision would also not be applicable and the general provisions under the Limitation Act, 1963 would be applicable. Section 17 of the Limitation Act inter alia provides that when a suit or application is for relief from the consequences of a mistake, the period of limitation would not begin to run until the plaintiff or applicant has discovered the mistake, or could, with reasonable diligence, have discovered it. Since the period of limitation begins to run only from the time when the applicant comes to know of the mistake, the application made by the petitioner was well within the prescribed period of limitation. Moreover, since the very retention of the Education Cess and Secondary and Higher Secondary Education Cess by the respondents is without authority of law, in the light of the decision of this court in Swastik Sanitarywares Ltd. v. Union of India (supra), the question of applying the limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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