2010 (11) TMI 293

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....he Appellant is that as per the provisions of Notification No. 41/2007-S.T., dated 6-10-2007, exemption of Service Tax on specified taxable service by way of refund is granted. The contention is that the Appellant paid Service Tax along with the Education Cess and claimed the refund of Service Tax and Education Cess. Refund of Service Tax has been allowed. The contention is that the Education Cess is also a part of Service Tax. Therefore, the Appellant are liable for refund. 4. Revenue submitted that Notification No. 41/07-S.T., dated 6-10-07 only provides exemption of Service Tax by way of refund. The Notification does not provide any refund of Service Tax by way of Education Cess. In absence of any notification granting refund of ....

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....missible only. In the case of Kamakhya Cosmetics & Pharma. Pvt. Ltd. (supra), similar issue has come whether refund of Education Cess is admissible under the Area Based Exemption Notification which provides exemption by way of refund of basic excise duty or additional duty of excise only. The Tribunal in that case held as follows :- "7. The issue involved in these appeals is that whether the appellants are entitled for refund of education cess which was levied by Finance Act, 2004 under the provisions of Notification No. 32/99-C.E. The notification provides refund of basic excise duty or additional duty of excise which has been paid from the account current i.e. PLA. There is no provision under the notification for refund of duty pa....

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....of the exported goods. Therefore, the ratio of the decisions relied upon by the appellant are not applicable on the facts of present case. 9. The applicant also relied upon the decisions of the Tribunal in the case of Cyrus Surfactants Pvt. Ltd. (supra). While interpreting the provisions of 56/2000-C.E., tribunal allowed the refund of education cess. On the contrary, we find that Hon'ble Himachal Pradesh High Court in the case of Indo Farm Tractors & Motors Ltd. v. Union of India - 2008 (222) E.L.T. 184 (H.P.) while interpreting the provisions of Finance Act, 2004 vide which the education cess was levied held that in case the goods are exempted from payment of basic duty, the education cess is leviable. The Hon'ble High Court held t....