TMI Blog2020 (8) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... t was held that the appellants therein were entitled to refund of education cess and higher education cess which was paid along with the excise duty once the excise duty itself was exempted from levy. The demand cum show-cause notice dated 09.06.2020 is assailed in this writ petition on the ground that the condition precedent to invoke the power under section 11(A-1) is that the refund made must be erroneous - It being so, condition precedent of section 11(A-1) of the Excise Central Act, 1944 is not satisfied. A question for determination would be as to whether the proposition of law laid down in Unicorn Industries [ 2019 (12) TMI 286 - SUPREME COURT ] would render the refund made to the petitioner to be erroneous - As agreed upon l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ahati reported in (2018) 1 SCC 105 wherein in paragraph27 of the said judgment it was held that the appellants therein were entitled to refund of education cess and higher education cess which was paid along with the excise duty once the excise duty itself was exempted from levy. 7. In the resultant circumstance, by the order dated 13.02.2019 of the Assistant Commissioner, Excise, GST and Central Excise, certain amounts were sanctioned for being refunded to the petitioner and accordingly the refunds were given effect. Subsequent thereto, the Supreme Court in its pronouncement in Unicorn Industries vs. Union of India and others reports in 2019 SCC Online SC 1567 in paragraph 49 had held as under: 49. The reason employed in SRD Nutrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued the demand cum show cause notice dated 09.06.2020 to the petitioner by which a question was raised that the earlier refund of the education cess secondary and higher education cess given to them has now become erroneous refunds and therefore, a recovery be made under section 11(A-1) of the Central Excise Act 1944. The demand cum show-cause notice dated 09.06.2020 is assailed in this writ petition on the ground that the condition precedent to invoke the power under section 11(A-1) is that the refund made must be erroneous. It is contended when the refund was given effect during the period prior to the judgment of the Supreme Court in Unicorn Industries (supra), at that point of time the proposition laid down in SRD Nutrients Private ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ASGI appears for the GST and Excise Department, if so advised, a separate affidavit may be filed within a period 2(two) weeks. 16. As prayed, 2(two) weeks is allowed to file the affidavit-in-opposition. 17. Similarly, the said affidavit-in-opposition be served to the learned counsel for all such writ petitions where similar issue is involved in which Mr. S.C. Keyal learned ASGI appears for the GST and Excise Department. 18. Upon the affidavits being served on the petitioners, any reply, if so advised, may be filed by the petitioners within a period of 2(two) weeks thereafter. 19. As agreed upon list the matter on 06.10.2020 for further consideration. Till the next date fixed, the recovery of the higher education cess already ref ..... X X X X Extracts X X X X X X X X Extracts X X X X
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