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2024 (6) TMI 1107

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....present case are that the appellant is engaged in manufacture of P & P Medicines and Scrap falling under Tariff Item Nos. 30049099, 30039090 and 39203090. The appellant filed refund claim of the Cenvat duty paid through PLA in terms of the provisions of Notification No. 56/2002-CE dated 14.11.2002 as amended. The adjudicating authority partly allowed the refund but partly rejected the refund claim on account of education cess and secondary & higher education cess paid through Cenvat Credit account of BED; and also appropriated an amount from the sanctioned refund amount. Aggrieved by the order of the adjudicating authority, the appellant filed appeal before the Commissioner (Appeals), who has upheld the Order-in-Original and rejected the ap....

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.... the appellant. (c) an amount of Rs.755/- as interest on delayed payment of duty by the appellant. (d) an amount of Rs.1,506/- (i.e. Rs.1005/- and Rs.501/-) on account of short payment of education cess and S&H education cess on reversal of inputs cleared as such. 4.5 Further, he submits that the amount of Rs.3,71,534/- was reversed in the month of February 2011 itself which means Cenvat Credit was reduced and more amount was paid in cash for payment of excise duty on clearance of finished goods and this fact is confirmed in para 8 of the Order-in-Original that the appellant has reversed the Cenvat Credit. Despite this, the amount of Rs.3,71,534/- was again deducted from the sanctioned refund claim, which resulted in twice deduction of....

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....ion of the Supreme Court in the case of SRD Nutrients Pvt Ltd vs. Commissioner - 2017 (355) ELT 481 (SC) as it held to be per incuriam. 6. After considering the submissions made by both the sides and perusal of the material on record, I find that the as regards the rejection of refund claim of Rs.62,842/- is concerned, the same cannot be allowed in view of the decision of Division Bench of this Tribunal in the case of Commissioner of C.E., Jammu vs. R.B. Jodhamal & Co. Pvt Ltd (supra), wherein it has been held that a unit availing of exemption under Notification No. 56/2002-CE cannot utilize BED Credit for payment of education cess and secondary & higher education cess which are not exempted under the said notification; and now finally set....

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.... 56/2002-CE dated 14.11.2002 are pari-materia to the provisions of Notification No. 71/2003-CE dated 09.09.2003. It is pertinent to reproduce the relevant findings of the case of M/s Unicorn Industries cited (supra) which are reproduced herein below:- "39. Rule 8 of Central Excise Rules, 1944, authorises the Central Government to grant an exemption to any excisable goods from the whole or any part of duty leviable on such goods. Rule 8 is extracted hereunder : "8. Power to authorise an exemption from duty in special cases. - (1) The Central Government may from time to time, by notification in the official Gazette, exempt (subject to such conditions as may be specified in the notification) any excisable goods from the whole or any part o....

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.... 91 of the Act of 2004 and Section 126 of the Act of 2007. The provisions of Act of 1944 and the Rules made thereunder shall be applicable to refund, and the exemption is only a reference to the source of power to exempt the NCCD, education cess, secondary and higher education cess. A notification has to be issued for providing exemption under the said source of power. In the absence of a notification containing an exemption to such additional duties in the nature of education cess and secondary and higher education cess, they cannot be said to have been exempted. The High Court was right in relying upon the decision of three-Judge Bench of this Court in Modi Rubber Limited (supra), which has been followed by another three-Judge Bench of th....

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....veral decisions such as Mahanagar Railway Vendors" Union v. Union of India & Ors., (1994) Suppl. 1 SCC 609, State of Maharashtra & Ors. v. Mana Adim Jamat Mandal, AIR 2006 SC 3446 and State of Uttar Pradesh & Ors. v. Ajay Kumar Sharma & Ors., (2016) 15 SCC 289. The decision rendered in ignorance of a binding precedent and/or ignorance of a provision has been held to be per incuriam in Subhash Chandra & Ors. v. Delhi Subordinate Services Selection Board & Ors., (2009) 15 SCC 458, Dashrath Rupsingh Rathod v. State of Maharashtra, (2014) 9 SCC 129, and Central Board of Dawoodi Bohra Community & Ors. v. State of Maharashtra & Ors., (2005) 2 SCC 673 = 2010 (254) E.L.T. 196 (S.C.). It was held that a smaller bench could not disagree with the view....