TMI Blog2022 (2) TMI 1118X X X X Extracts X X X X X X X X Extracts X X X X ..... e has already been decided in favour of the Appellant assessee, then the earlier demand notices become infructuous and cannot be sustained in the eyes of law. Further for the same period on the same issue, two demand notices cannot be sustained and hence the order of the learned First Appellate Authority needs to be modified to the above extent. Thus in the instant case, the refund claim of the Appellant needs to be allowed - Appeal allowed - decided in favor of appellant. - Excise Appeal No.76748 of 2019 with Excise Appeal No.76859 of 2019 - FINAL ORDER NO. 75118-75119/2022 - Dated:- 24-2-2022 - SHRI P. K.CHOUDHARY, MEMBER (JUDICIAL) AND SHRI P.V.SUBBA RAO, MEMBER (TECHNICAL) Shri Ankit Kanodia, Advocate for the Appellant/Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate on the ground that Sugar Cess is not expressly stipulated as a levy on which credit can be taken under Rule 3 of the Cenvat Credit Rules, 2004. The refund claim was rejected by the Adjudicating Authority vide the impugned Order-in-Original dated 11th June 2018. 4. The Appellant filed an Appeal before the First Appellate Authority which by its order dated 02/04/2019 partly allowed the refund claim to the extent of ₹ 2,97,57,505/- while the balance amount of ₹ 1,69,13,316/- has been rejected on the ground that for the said amount covering the period August 2014 to June 2015, the Appellant has been served with a Show Cause Notice No.32/Commr./2015 dated 21/08/2015 which is pending adjudication and hence the said amount being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verages Pvt. Ltd. Vs. CCE, Jaipur MANU/CE/0313/2018 Hindustan Coca-Cola Beverages Pvt. Ltd. Vs. Commissioner of Central Tax-Guntur-GST 2019-VIL-236-CESTAT-HYDERABAD-CE 6. Shri J.Chattopadhyay, learned Authorized Representative for the Respondent/Revenue justifies the impugned order and as regards the departmental appeal for the amount allowed as refund by the First Appellate Authority, the learned Authorized Representative relies on the judgment of the Hon ble Apex Court in the case of Unicorn Industries v. UOI, 2019 (12) TMI 286, which has held in cases of refund/exemption of excise duty for the units located in the northeast region, the same does not apply to education cess as the notification governing the exemption does n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme Court in Bamagore Jute Factory Co. Vs. Inspector of Central Excise [1992 (57) ELT 3], answered the substantial question of law in favour of the assessee and against the Revenue. On the other hand, the decisions relied upon by the learned Authorized Representative for the Resepondent/Revenue are dealing with the issue of eligibility of exemption of education cess when the excise duty levy is exempted which is totally a different subject matter in our view. 10. Also, in a similar matter, this Bench in the case of Diamond Beverages Private Limited vide Final Order No.76356/2019 dated 07/08/2019 has allowed the Cenvat credit of sugar cess. 11. We find from the case records that the First Appellate Authority has rejected the part claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers with direction that it is followed scrupulously. 3. The judgment of Hon ble High Court in M/s. Dupont case (supra) under reference may be perused by the field officers for complete understanding of the issues involved and directions of the Hon ble High Court on need to follow judicial discipline. Judgment of the Hon ble Supreme Court in case of Union of India v. Kamlakshi Finance Corporation Ltd. [1991 (55) E.L.T. 433 (S.C.) = 2002-TIOL-484-SC-CX-LB] may also be perused as this is an authoritative pronouncement on the issue and has also been cited by the Hon ble High Court. 4. The contents of this instruction may be brought to the notice of all Adjudicating Authorities under your jurisdiction with direction to follow the same ..... X X X X Extracts X X X X X X X X Extracts X X X X
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