TMI Blog2019 (5) TMI 1568X X X X Extracts X X X X X X X X Extracts X X X X ..... Cess, Automobile Cess etc. which have also been imposed under different statutes and from time to time, as to whether they are in the nature of cess or tax /duty and ultimately those issues were got settled in favour of assessee either Hon ble Supreme Court or by the Hon ble High Court and those were held to be tax/duty. A tax recovered by the government goes into the Consolidated Fund of India which is utilised for all public purposes and no money out of the Consolidated Fund of India shall be appropriated except in accordance with law and for the purposes and in the manner provided in the Constitution. Whereas a cess or fee does not become part of the Consolidated fund and are earmarked for the purpose of services for which it is levi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from July, 2016 to September, 2016 and (ii) for Swachh Bharat Cess (SBC) for the period July, 2016 to September, 2016 which is an additional Cess @ 0.5% each levied on all taxable services as per Notification No. 21/2015-ST, dated 06.11.2015. 3. A show cause notice dated 15.06.2017 was issued to the appellant as to why the refund claim of Swachh Bharat Cess be not rejected alleging that Swachh Bharat Cess is an additional cess levied over and above service tax and is not integrated in the Cenvat chain and once this is the case, the appellant could not have availed credit in the first placed and hence, refund of such Swachh Bharat Cess does not arise. The adjudicating authority vide order-in-original dated 12.01.2018 rejecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cements Ltd. vs. CC,CE ST, Bangalore reported in 2018 (362) ELT 841 (Tri. Bang). The Learned Authorised Representative reiterated the findings recorded in the impugned order and prayed for dismissal of appeal filed by the appellant. He also submitted that Swachh Bharat Cess is the additional Cess levied over and above the service tax and is not integrated in the Cenvat credit chain and hence refund of Swachh Bharat Cess does not arise. 5. In order to appreciate the issue involved, its better to have a look at Section 119 of the Finance Act, 2015 which is extracted as under:- Section 119 of the Finance Act, 2015 119. (1) This Chapter shall come into force on such date as the Central Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Finance Act, 1994 or the rules made there under, as the case may be. From the above it is clear that the Swachh Bharat Cess is levied and collected for the purpose of financing and promoting Swachh Bharat initiatives or for any other purpose relating thereto but in the nature of Service Tax. That Service tax in the form of cess shall be in addition to any cess or service tax leviable on the taxable services under Chapter V of the Finance Act, 1994. In the same way from time to time issues were raised qua Education Cess, Secondary and Higher Education Cess and, Sugar Cess, Automobile Cess etc. which have also been imposed under different statutes and from time to time, as to whether they are in the nature of cess or tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Tribunal in the matter of Ramco Cements Ltd. (supra) while relying upon the decisions mentioned hereinabove held that the Cenvat Credit of Clean Energy Cess is admissible. The relevant portion of the said decision is as under:- xxx xxx xxx 6.2 After going through the decision in Sri Renuka Sugars Ltd. cited supra, I find that the Sugar Cess levied under Sugar Cess Act, 1982 is similar to Clean Energy Cess levied under Section 83 of the Finance Act, 2010 and therefore the ratio laid down by the Hon ble High Court of Karnataka in the case of Sri Renuka Sugars Ltd. is squarely applicable in the facts and circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Cess. As per Section 119(5) of the Finance Act, 2015, rules notified under the Finance Act, 1994, which include Cenvat Credit Rules, 2004 also, shall be applicable for Swachh Bharat Cess as they apply to Service Tax. Therefore, Swachh Bharat Cess paid on input services has to be available as Cenvat Credit and the same can be discharged by utilising Cenvat Credit and the appellant is therefore entitle for the refund of it. So far as filing of two separate claims are concerned, it is only a procedural lapse and substantial benefit of refund cannot be denied to the Appellant on this ground. 9. In view of the discussions made hereinabove the issue involved is decided in favour of the Appellant and accordingly the Appeal is al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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