9911796707
TMI Blog2007 (7) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... getting man made fabrics processed. The applicant has filed refund claim under Rule 18 of the Central Excise Rules, 2002 for claiming rebate on Excise Duty paid during the period from 9-7-2004 to 5-9-2004 including amount of education Cess paid under the aforesaid provisions of Finance Act, 1994 on export of man made processed fabrics. 4.The claim to rebate was sanctioned by learned Deputy Commissioner. 5.Against the order of Deputy Commissioner, Central Excise, an appeal was preferred before the Commissioner (Appeals) under the directions of Commissioner of Central Excise. The Commissioner (Appeals) set aside the Order-in-Original and allowed the appeal of Department by confirming that the Education Cess paid during the period from 9-7- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act of 2004 w.e.f. 9-7-2004. 8.This has led to filing of this petition as no remedy is provided under the Statute against the order of Central Government. 9.Learned counsel for the petitioner contends that Section 93 of the Finance Act makes it abundantly clear that with the commencement of the Finance Act, 1994, particularly the provisions relating to levy of Education Cess and exemption attached with the excise Duty payable under the Central Excise Act automatically became available to Education Cess as part of Duties on excise and no separate Notification was in fact required. Learned counsel further contends that even in the absence of Notification Annex. 1, dated 6-9-2004 the petitioner is entitled to avail exemption on excise duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms Act, 1962 (52 of 1962) or chapter V of the Finance Act, 1994 (32 of 1994), shall have the meanings respectively assigned to them in those Acts Chapter, as the case may be. 93.Education Cess on excisable goods. - (1) The Education Cess levied under section 91, in the case of goods specified in the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), being goods manufactured or produced, shall be a duty of excise (in this section referred to as the Education Cess on excisable goods), at the rate of two per cent, calculated on the aggregate of all duties of excise (including special duty of excise or any other duty of excise but excluding Education Cess on excisable goods) which are levied and collected by the Central Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1944 and the rules made thereunder, including those relating to refunds and exemptions from duties and imposition of penalty shall, as far as may be, apply in relation to the levy and collection of the Education Cess as they apply in relation to the levy and collection of the duties of excise on such goods under the Central Excise Rules. 14.Similar provision has been made under Section 94 in respect of Education Cess collected as part of customs Duty and under Section 95 Education Cess levied and collected as part of Service Tax. In other words, levy of surcharge under Sections 93, 94 and 95 on respective taxes was the levy for the purpose of Union and was to be utilised by the Union to fulfil the commitment of the Central Government to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufactured and exported out of India was also in existence and petitioner was otherwise eligible to avail rebate in respect of excise duty payable by him on the export of its product. 18.The Explanation appended to Notification dated 26-6-2001 included within the ambit of Excise Duty any special Excise Duty collected under any Finance Act when under Finance Act, 2004 it was ordained that Education Cess to be collected as surcharge on Excise Duty payable on excisable goods and shall be a Duty of Excise, it became a special Duty of Excise by way of Education Cess chargeable and collected under Finance Act, 2004 and fell within the ambit of clause (3) of Explanation, appended to Notification dated 26-6-2001. Consequently, rebate became availab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Excise Duty as was existing on the date Notification was issued, even if Explanation would not have been there the term Duty of Excise in ordinary circumstance would have included the surcharge levied as Education Cess in terms of Section 93 of the Act of 2004. 20.In view thereof, we have no hesitation to hold that impugned orders of Central Government as revisional authority and appellate order of Commissioner (Appeals) are patently erroneous and deserve to be quashed. 21.Accordingly, writ petition is allowed, impugned orders are set aside to the extent the petitioner has been denied the claim to rebate on surcharge on Excise Duty appropriated by Union of India as Education Cess for funding Universalised quality basic education progra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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