2015 (11) TMI 464

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....r the appellants are entitle for refund in respect of Education cess and Secondary and Higher Education Cess paid through cash under Notification No. 56/2002-CE dated 14/11/2002. The adjudicating authority rejected the refund claim on the ground that the notification NO. 56/2002-CE does not exempt education cess and Secondary and Higher Education cess as it exempt only basic excise duty. Therefore refund available under the notification is limited to basic excise duty only and not to the education cess and Secondary and Higher education cess. Aggrieved by the said order in original the appellant filed appeal before the Commissioner (Appeals) on the ground that the issue is squarely covered by the Tribunal judgment in the case of Bharat Box ....

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....Factory Ltd passed the judgment way back in 2007 and eight years already passed. The Revenue could not obtain any stay against the order of this Tribunal in their SLP bearing No. 31298/08. I observed that this Tribunal is heavily burdened with huge pendency of appeals. There is no provisions that if either litigant approached to the higher forum in a finding case without any stay matter, this Tribunal keep the identical matters in abeyance. In my view wheel of justice should not stop, therefore I do not find any reason that why appellant should suffer despite order of this Tribunal in Bharat Box Factory case is in their favour. I, therefore, dispose of these appeals. I find that issue involved whether the assessee working under area based e....

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....re levied and collected by the Union Finance Ministry under any other law for the time being in force. Inclusion of the provisions of Section 93 of the Finance Act, 2004 in the Notification would have created an exemption from levy of Education Cess even in the context of excise duties payable under the other laws in respect of which no excise duty exemption was intended under the said Notification. To illustrate, if the provisions of Finance Act, 2004 were also mentioned in the said Notification along with the said three Acts, then even the Education Cess in the nature of excise duty leviable on Cess in the nature of excise duties under Section 3 of the Sugar Cess Act, 1982, Section 15 of the Oil Industries Development Act, 1974, and Secti....

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....ion Cess, which was in the nature of piggy back duty on the excise duties under the said three Acts, was also required to be refunded, because it was not at all leviable, in view of the entitlement to exemption worked out under Paragraph 2 of the said Notification. The impugned orders of the Commissioner (Appeals) cannot, therefore, be sustained and is hereby set aside with consequential reliefs. These appeals are accordingly allowed." Similarly, in case of Sun Pharmaceutical Industries Vs. Commissioner of C. Ex., Jammu [2007(207) ELT 673] coordinate bench of this Tribunal held as under: "7. I have perused the record and have considered the submissions made by both sides. 8. A careful perusal of sub-rule 7(b) makes it clear that the li....