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TMI Blog2023 (10) TMI 588X X X X Extracts X X X X X X X X Extracts X X X X ..... with the central excise department. Vide Notification No.20/2007-CE dated 25.04.2007, as the appellants are located in the state of Sikkim they were entitled to pay duty in cash after exhausting cenvat credit and whatever duty paid in cash, the appellant is entitled to take refund of the same. 3. The issue with regard to in these cases is that terms of the above said Notification whether the appellants were entitled to claim refund of education cess or higher education cess paid by them or not? 4. Initially the said issue was settled by the decision of the Hon'ble Apex Court in the cases of SRD Nutrients Private Limited v. Commissioner of Central Excise, Guwahati [2017-TIOL-416-SC-CX] on the basis that refund claim of education cess, high ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Tripura, availed the benefit of duty exemption on the goods cleared from such manufacturing unit pursuant to the Government of India policy to encourage industrial investment and growth in North Eastern region. The petitioner contended that since the basic duty of excise was not payable the additional charge of education cess and higher education www.taxguru.in Page 9 of 17 cess also cannot be collected. Based on the decision of the Supreme Court in case of SRD Nutrients, the petitioners made refund claims for refund of education and higher education cess. Such refund application was allowed by the Assistant Commissioner. However, soon thereafter in the decision in case of Unicorn Industries the Supreme Court held and observed that decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der with intent to evade payment of duty, by such person or his agent, the provisions of this sub- section shall have effect as if for the words one year, the words" five years" were substituted. 4. Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, by the reason of (a) fraud; or (b) collusion; or (c) any wilful mis-statement; or (d) suppression of facts; or (d) contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty." [12] Section 11A thus makes a distinction between the cases of duty of excise not having been levied, paid or short levied or short paid or erroneously refunded for the reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r view any subsequent change in the legal position, would not permit him to invoke the powers under Section 11A of the Central Excise Act. As is well settled, all legal proceedings on the date when they are being decided by any Court, would be governed by the law laid down by the Supreme Court which prevails on such date. As is often happens, a decision of the Supreme Court is reviewed, reconsidered or overruled by larger Bench. Such www.taxguru.in Page 12 of 17 subsequent decision would undoubtedly clarify the position in law and such declaration would undisputedly apply to all pending proceedings, the proceedings which are closed in the meantime, cannot be reopened on the basis of subsequent declaration of law by the Supreme Court. Any ot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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