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of <h1>Appellant wins refund appeal after proving education cess is excise duty</h1> <h3>SUN PHARMACEUTICAL INDUSTRIES Versus COMMISSIONER OF C. EX., JAMMU</h3> SUN PHARMACEUTICAL INDUSTRIES Versus COMMISSIONER OF C. EX., JAMMU - 2007 (207) E.L.T. 673 (Tri. - Del.) , 2008 (11) S.T.R. 93 (Tri. - Del.) Issues:Denial of refund under Notification No. 56 of 2002 for cash payments of basic excise duty.Analysis:The appellant, located in a specified area, was eligible for exemption under Notification No. 56 of 2002. The exemption required the manufacturer to first discharge duty on goods, then file refund applications for the duty paid, and pay only the balance amount in cash after utilizing the Cenvat credit. The appellant filed refund claims for cash payments of basic excise duty in September and October 2005, which were denied by the Revenue. The denial was based on the appellant using Cenvat credit for education cess, which was deemed impermissible under the Cenvat Credit Rules. The Commissioner (Appeals) upheld this decision, also contending that education cess is not excise duty.The appellant argued that the lower authorities' objections were legally unsustainable. They pointed out that the Cenvat Credit Rules' sub-rules governed the utilization of credits, with sub-rule 7(b) not applicable to basic excise duty credit utilization. The appellant had used basic excise duty credit to pay education cess, which was permissible under sub-rule 4 of Rule 3. Additionally, the appellant cited Section 93 of the Finance Act, 2004, declaring education cess as excise duty. The appellant's refund claims were for basic excise duty, not education cess, and were in line with Notification No. 56/02. The appellant also referenced a Tribunal decision confirming that a cess on goods produced in India is excise duty.Upon review, it was found that sub-rule 7(b) did not restrict the utilization of basic excise duty credit, and the objection regarding education cess not being excise duty was unfounded based on the Finance Act declaration. The appellant's refund claims for basic excise duty were valid under the exemption notification. Therefore, the lower authorities' objections were deemed unsustainable, and the appeals were allowed with relief to the appellant.
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