TMI Blog2022 (1) TMI 615X X X X Extracts X X X X X X X X Extracts X X X X ..... URT ] by this Court, on the very same issue in this batch of appeals this Court has held that when the duty is exempted the cess which is notified by subsequent Finance Act which is leviable on excise duty also stands exempted. In view of the fact that the earlier judgment in the case of M/s. Unicorn Industries (supra) is rendered by three-Judge Bench of this Court, relying on earlier judgment of this Court in the case of Modi Rubber Ltd. which is also rendered by three-Judge Bench of this Court we are of the view that the present application is required to be considered by a three-Judge Bench. It is also to be noted that notice in the application is also issued by three-Judge Bench of this Court. This application is required to be hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise duty leviable under the Act, equivalent to the amount of duty paid by the manufacturer other than the amount of duty paid by utilization of Cenvat credit. Such notifications were amended subsequently restricting the refund of duty only to the duty payable on value addition undertaken in the manufacture of the goods by such units. As per the notifications manufacturers were required to pay the duty initially at the time of clearance and thereafter claim the refund thereof. 3. The education cess, the secondary education cess and the higher education cess were imposed vide Finance Acts of 2004 and 2007, which were also collected from the manufacturers who had set up their units in the areas covered by notifications, along with the excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6714/2018) filed by the applicant herein also ended in dismissal. Subsequently in Civil Appeal No. 9237 of 2018, titled as M/s. Unicorn Industries v. Union of India Ors. [(2020) 3 SCC 492 = 2019 (370) E.L.T. 3 (S.C.)], with reference to very same issue this Court has held that the duty on NCCD, education cess, secondary and higher education cess are in the nature of additional excise duty as such same is not covered by the notification dated 9-9-2003, particularly when there is no reference to notification issued under the Finance Acts. In the case of M/s. Unicorn Industries (supra) this Court has relied upon the decision of a three-Judge Bench of this Court rendered in the case of Modi Rubber Ltd. (supra). Subsequently same was followed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either in the judgment or subsequent order dismissing the review petition. 6. We have heard Sri N. Venkataraman, Learned Additional Solicitor General for the applicant, Sri V. Sridharan, Learned Senior Counsel for the respondent and Sri Mukul Rohatgi and Sri Arvind Datar, Learned Senior Counsels for the interveners. It is the case of the applicant that the judgment in the civil appeals is required to be modified as much as the earlier binding judgment of this Court rendered by a three-Judge Bench in the case of Modi Rubber Ltd. (supra) is not considered inspite of the fact that reliance is placed by specifically referring to the said judgment in the written submissions filed. It is stated that judgment in the batch of appeals was rendere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the cess which is notified by subsequent Finance Act which is leviable on excise duty also stands exempted. In view of the fact that the earlier judgment in the case of M/s. Unicorn Industries (supra) is rendered by three-Judge Bench of this Court, relying on earlier judgment of this Court in the case of Modi Rubber Ltd. (supra) which is also rendered by three-Judge Bench of this Court we are of the view that the present application is required to be considered by a three-Judge Bench. It is also to be noted that notice in the application is also issued by three-Judge Bench of this Court. 8. In view of the reasons stated above we are of the view that this application is required to be heard by a Bench of three Judges. Registry to plac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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