AI Structured Summary
Not yet generated for this judgment
Judgment
P. Anjani Kumar, Member (T)
The appellant is located in Jammu and were availing area-based exemption as contained under Notification No.56/2002-CE dated 14.11.2002 as amended. On the basis of the enhancement of the working strength of the unit by more than 25% from February 2004, the appellant have lodged a refund claim after due verification, an amount of Rs.36,49,818/- was sanctioned and an amount of Rs.76,031/- (paid on account of Education Cess); an amount of Rs.38,005/-(paid on account of Higher Education Cess) and an amount of Rs.151,227/- (being excess claim), which came to be rejected vide OIO dated 23.04.2010. On an appeal filed by the appellant against the above rejection, Commissioner (Appeals), vide Order dated 21.02.2011, upheld the OIO and rejected the claim of the appellants. Hence, the present appeal.
Heard Shri Sudeep S. Bhangoo, learned Advocate for the appellant; Shri Ravinder Jangu and Smt. Shivani, learned Authorized Representative for the Department and perused the records of the case.
Brief issue involved in the case is whether the appellants are eligible for the refund of Education Cess and Higher Education Cess paid by them, in terms of the area-based exemption notification. We find that the Commissioner (Appeals) has relied upon the judgment of the Tribunal in the case of Kamakhya Cosmetics & Pharma Pvt. Ltd.-2009 (246) ELT 413 (Tri. Kolkata) wherein it was held that there is no provision for refund of Education Cess and Higher Education Cess under the Notification and that the refund of the same was rightly rejected. With regards to the claim of excess duty paid, learned Commissioner (Appeals) rightly held that what is envisaged in the Notification is the refund of the duty payable and not the duty paid. We further find that the issue has travelled up to the Hon’ble Apex Court in the case of Unicorn Industries- 2019 (370) ELT 3 (SC) wherein the Hon’ble Apex Court held that:
“41.The Circular of 2004 issued based on the interpretation of the provisions made by one of the sCustoms Officers, is of no avail as such Circular has no force of law and cannot be said to be binding on the Court. Similarly, the Circular issued by Central Board of Excise and Customs in 2011, is of no avail as it relates to service tax and has no force of law and cannot be said to be binding concerning the interpretation of the provisions by the Courts. The reason employed in SRD Nutrients Private Limited (supra) that there was nil excise duty, as such, additional duty cannot be charged, is also equally unacceptable as additional duty can always be determined and merely exemption granted in respect of a particular excise duty, cannot come in the way of determination of yet another duty based thereupon. The proposition urged that simply because one kind of duty is exempted, other kinds of duties automatically fall, cannot be accepted as there is no difficulty in making the computation of additional duties, which are payable under NCCD, education cess, secondary and higher education cess. Moreover, statutory notification must cover specifically the duty exempted. When a particular kind of duty is exempted, other types of duty or cess imposed by different legislation for a different legislation for a different purpose cannot be said to have been exempted. “
In view of the above, we find that the appellants have not made any case in the appeal and the same is liable to be rejected. We do so.