2012 (7) TMI 846

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....14-11-2002, as amended, and the goods being manufactured are also covered by this notification, the respondent are availing the benefit of this exemption. As per the scheme for availing the exemption under this notification, a unit is required to determine its duty liability in respect of the clearances made during the month and thereafter first pay the duty to the extent possible through Cenvat credit available and only the balance amount of duty, if any, is required to be paid through PLA, which is refundable. The unit can either apply to the Jurisdictional Central Excise Authorities for the refund of duty paid through PLA in terms of the provisions of this Notification or take self-credit in the PLA, which can be utilised for payment of ....

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..... 653 (Tri.-Del.), wherein the Tribunal taking into account the judgment of the Apex Court in the case of Union of India v. Modi Rubber Ltd. reported in 1986 (25) E.L.T. 849 (S.C.) has held that benefit of Notification No. 56/2002-C.E. cannot be extended to Education Cess and Secondary and Higher Education Cess, that Notification No. 56/2002-C.E. covers only the duty of excise leviable under Section 3(1) of the Central Excise Act and the additional duties of excise, levied under Additional Duties of Excise (Goods of Special Importance Act), 1957 and Additional Duties of Excise (Textiles and Textile Articles) Act, 1978, that when this notification does not cover the Education Cess leviable under Finance Act, 1964 and Secondary and Higher Edu....

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....it is clear that this notification issued under Section 5A(1) of Central Excise Act, 1944, Section 3(3) of Additional Duties of Excise (Goods of Special Importance) Act, 1957 and Section 3(3) of Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 exempts the duties levied by these three acts only to the extent as mentioned in this notification. This notification does not mention the Education Cess levied under Finance Act, 2004 and Finance Act, 2007 as being covered by this exemption. The Apex Court in the case of Union of India v. Modi Rubber Ltd. (supra) has held that when Notification No. 123/74-C.E dated 1-8-74 and No. 27/81-C.E. dated 1-3-81 issued under Rule 8(1) of Central Excise Rules, 1944 (corresponding to Sectio....

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....ty but excluding Education Cess) levied and collected by the Central Government in the Ministry of Finance (Department of Revenue) under Central Excise Act, 1944 on any other law for the time being in force, the Education and Secondary and Higher Education Cess cannot be collected on the duty, which having been paid through PLA is exempt and is, hence, refunded as per the provisions of Notification No. 56/2002-C.E. In our view, this plea is not acceptable for the following reasons. (1) Notification No. 56/2002-C.E. is different from other exemption notification, as in terms of this notification, an assessee is first required to pay full duty leviable on the goods cleared during the month to the extent possible through Cenvat credit ac....