TMI Blog2024 (1) TMI 1055X X X X Extracts X X X X X X X X Extracts X X X X ..... th the department and the amount remains protected from being hit by time bar at a later stage while seeking a refund. In such a situation it was incumbent on the part of the department to vacate the protest through a speaking order at the earliest, after following the procedure as prescribed and following the principles of natural justice. This is because the amount deposited by the Appellant in good faith gets blocked until a decision is rendered in the matter which is a heavy cost for him. Its only after an order is passed vacating the protest that he can move forward by filing a refund claim, if the order is in his favour, or if held against him the Appellant can take up the matter in further appeal. The Hon'ble Apex Court in THE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er) 2. Brief facts of the case are that the appellant, a 100% EOU are engaged in the manufacture of surgical gloves falling under the Chapter Heading 40 of the CETA, 1985. Apart from export, the appellants are clearing their goods into Domestic Tariff Area (DTA) on payment of central excise duty as per Notification No. 23/2003-CE dated 31.3.2003 read with proviso (ii) to section 3(1) of Central Excise Act, 1944. The Central Excise officers on verification of records of the appellants felt that the appellants had erroneously calculated and discharged the education cess payable on the goods cleared to DTA resulting in short-payment of education cess to the tune of Rs.4,71,108/- for the period from April 2007 to September 2009. On this bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the Original Authority we would prima facie like to state that it is very clear that the appellant has deposited the money primarily to buy peace with the department. Hence the amount has been paid under protest so that his disagreement on the issue is registered with the department and the amount remains protected from being hit by time bar at a later stage while seeking a refund. In such a situation it was incumbent on the part of the department to vacate the protest through a speaking order at the earliest, after following the procedure as prescribed and following the principles of natural justice. This is because the amount deposited by the Appellant in good faith gets blocked until a decision is rendered in the matter which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Finance Act, 2004 and Section 136 of the Finance Act, 2007 respectively according to which, this levy is a cess levied as surcharge to enable the Central Government to finance its commitment to provide universalized quality of basic education and secondary and higher education. Surcharge on a tax means additional tax on that tax. As discussed above, though education cess and S H cess being cess to enable the Government to finance its expenditure on providing basic education and secondary and higher education, is a levy different and distinct from the tax on which it is levied as surcharge, the mode or measure of this levy is surcharge at the rate of 2% and 1% on the existing levies i.e. the taxes being collected by the Government as - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms duty, first cess on imported goods under Section 94 of Finance Act, 2004 and Section 139 of Finance Act, 2007 is charged as duty of customs and on the aggregate of duties of customs, cess on excisable goods, under Section 93 of Finance Act, 2004 and Section 138 of Finance Act, 2007 is charged, it would amount to charging education cess on education cess for which there is no sanction in law. Apex Court in case of Jain Brothers v. U.O.I., reported in (1970) 77 ITR 107 has held that there can be no objection for double taxation if the legislature has distinctly enacted it, but while interpreting general words of taxation, the same cannot be so interpreted as to tax the subject twice over to the same tax. In our view, it is this princ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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