2012 (7) TMI 200

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....d claim on 30.03.2010 of Rs.31,914/-(Rupees Thirty One Thousand Nine Hundred and Fourteen only) for Education Cess paid as secondary and higher education Cess on paper and paper board. For the Cess paid during April, 2004 to February, 2009. The lower adjudicating authority rejected the refund claim on the aspect of time bar. Since the refund was filed beyond the time limit prescribed under Section 11B of Central Excise Act, 1944 only on the ground that the appellant challenged the same before Commissioner(Appeals), who also in turn upheld the lower adjudicating authority s order and rejected the appeal filed by the appellant. Hence the appeal. 4. The contention of the appellant is that South Zonal Bench of CESTAT at Bangalore in the case....

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....d 21.07.2010 passed by Superintendent., C.Ex., Range-III, Kalyani Division and Order-in-Original No.4/R/Kly/201O-11 dated 19.08.2010 passed by Assistant Commissioner of Central Excise, Kalyani Division respectively against demand of duty of Rs.7959/- and imposition of penalty of equal amount in the first case and rejection of refund of Rs.31,914/- in the other one. Since the issue involved i.e. leviability of cess on paper cess in both the cases is common, I am taking up both these appeals in this Order.   Personal hearing in these cases was held on 11.02.11 when Shri S.M. Varma, Company Secretary appeared and filed written submissions. He requested to allow both the appeals waiving the requirement of pre-deposit of duty and penalty....

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....gets precedence over those decisions relied upon by the adjudicating authority. In view of clear application of the Tribunal's judgment on all fours, I do not have any hesitation in holding that the cess on paper cess is not leviable. In view of above, the first appeal is allowed by setting aside the Order of Superintendent confirming demand of cess and imposing penalty.   As far as second appeal is concerned, it relates to refund of cess on paper cess, already paid. Asstt.Commissioner has rejected the refund not only on merits but also on the grounds of time bar and unjust enrichment. The appellants have not been able to prove that they had filed refund claim for the period April,2004 to February,2009 within the time limit prescrib....