TaxTMI 
TaxTMI 
2014 (6) TMI 939
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....und claim for the year 2012-13) 15,87,405/- (in terms of notification No. 56/2002 C.E., dated 14-11-2002) - - 2 716/13 1760 to 1763/AC/R(C)/JMU/2013, dated 18-9-2013 April, 2013 - 1,94,757/- 97,374/- 3 717/13 1760 to 1763/AC/R(C)/JMU/2013, dated 18-9-2013 May, 2013 - 1,65,368/- 82,584/- 4 718/13 1760 to 1763/AC/R(C)/JMU/2013 dated 18-9-2013 June, 2013 - 83,516/- 41,756/- 5 719/13 1760 to 1763/AC/R(C)/JMU/2013, dated 18-9-2013 July, 2013 34,12,120/-(in terms of notification No. 1/2010 C.E., dated 6-2-2010) 2,86,701 1,42,297/- 6 741/13 1959/AC/R(C)/JMU/2013, dated 3-10-2013 August, 2013 - 4,88,060/- 2,45,080/- 7 827/13 2199/AC/R(C)/J M U/2013, dated 22-10-2013 Sept, 2013 - 4,62,065/- 2,31,031/- Total 49,99,525 16,80,467 8,40,122 1.1 Since the issues involved in these appeals are common, therefore, these appeals are being taken up together for disposal through this common order. 2. Briefly stated, the appellants holding Central Excise Registration No. AAACI3076PEM008, dated 25-8-2010, are engaged in the manufacture of Insecticides, Pesticides, Fungicides, Herbicides & Plant Growth Regulators falling u....
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....llants have filed these appeals against rejection of their refund claims for the cesses vide the impugned orders, as detailed at Sr. Nos. 2 to 7 of the table above and against not sanctioning of their refund claim over & above the value addition norms, vide the impugned orders, as detailed at Sr. Nos. 1 & 5 of the above table., on the following grounds :- (i) That the impugned orders are bad in law/violative of the principles of natural justice in as much as the same have been passed without issue of Show Cause Notices and without affording any opportunity of personal hearing. (ii) That the adjudicating authority ought to have considered the issue in proper perspective; that the issue for consideration was whether the cesses would form part of duty of Excise for levy and collection or not. The cesses are nothing but percentage of duty which is being levied and collected only as part of duty. If the cesses are part of duty for levy and collection, it is equally part of duty for refund thereof to the appellants and this vital fact has not been appreciated; that under the notification, the special exemption to units/factories in Jamm....
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....2007 (214) E.L.T. 534] which is the binding precedent as appeal of the revenue against the aforesaid Tribunal's order has been dismissed by the Hon'ble High Court of J&K in the case of CCE, Jammu v. M/s. Bharat Box Factory Ltd. [2008 (231) E.L.T. 416 (J&K)]. (viii) That the issue has been settled by the Hon'ble Tribunal in the case of Cyrus Surfactants (P) Ltd. v. CCE, Jammu - 2007 (215) E.L.T. 55, wherein, it has been held that the cesses are exempted because they were not at all leviable, in view of the entitlement to exemption in terms of the notification. (ix) That vide judgment in the case of Reckitt Benckiser v. UOI [2011 (269) E.L.T. 194 (J&K)], the Hon'ble High Court of J&K has quashed the restrictions imposed vide the amending notifications as such they are entitled for refund of full amount. (x) That there was no justification to hold the refund claims to restricted to value addition, because the appellants fully satisfy the provisions of the notification. 3.1 In addition to their submissions against not sanctioning their refund claim over and above the value addition norms in respect of their appeal listed at Sr. No. 5 of t....
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....cise and additional duty of excise, which is paid in cash. I observe that the Education Cess and Secondary & Higher Education Cess are levied @ 2% & 1%, respectively, on the aggregate of all duties of excise and collected by the Ministry of Finance. The cesses are levied under the Finance Acts, 2004 & 2007 and not under any of the Acts specified in the notification or the new notification. As such the refund of the same is not admissible under the notification or the new notification. 6.1 I find that the issue has been decided by the Principal Bench of CESTAT, New Delhi vide Final Order Nos. 900A-1143A/2009-EX(DB), dated 12-8-2009 in the case of M/s. Jindal Drugs Ltd & Ors. [2011 (267) E.L.T. 653 (Tri.-Del.)], holding that the notification does not specify the Finance Acts, 2004 & 2007, under which the Cess is levied. The appellant's case is covered under the said Final Order of the CESTAT. The Hon'ble CESTAT in para 46 of the judgment has held as under :- "46. For the reasons stated above, therefore, we find that in terms of the notification in question, there was no prohibition for levy and collection of education cess or higher education cess in respect of the levy ....
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....under Section 136, of Finance Act, 2007 are not covered by Notification No. 56/2002-C.E., as is clear from the language of para 1 of the notification. Apex Court in case of Union of India v. Modi Rubber Ltd. reported in 1986 (25) E.L.T. 847 (S.C.) has held that the words 'duty of excise' in exemption notification No. 123/74-C.E., and 27/81-C.E., issued under Rule 8(1) of Central Excise Rules, 1944 (now Section 5A of Central Excise Act, 1944) cover only the duty of excise leviable under Section 3(1) of the Central Excise Act, 1944 and do not cover special excise duty leviable under Finance Act, 1978 and AED(GSI) leviable under AED(GSI) Act, 1957. Relying upon this judgement of the Apex Court this Tribunal in case of CCE, Jammu v. Jindal Drugs Ltd. reported in 2011 (267) E.L.T. 653 (Tri.-Del.) has held that notification No. 56/2002-C.E., does not cover education cess leviable under Section 91 read with Section 93 of Finance Act, 2004 and S&H cess leviable under Section 136 read with Section 138 of the Finance Act, 1978. Same view has been taken by Hon'ble Gauwati High Court in case of CCE Shillong v. Dharampal Satyapal Ltd. reported in 2012 (275) E.L.T. 71 (GAU) wherein with regard t....
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....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 paid from the Cenvat Account and there is no dispute regarding refund of basic excise duty paid from PLA account." 6.5 Further, I find that the Hon'ble Tribunal in a number of subsequent cases including the cases of M/s. Tawi Chemical Industries Ltd. - 2012 (286) E.L.T. 553 (Tri.-Del.), M/s. R.B. Jodhamal & Co. Pvt. Ltd. - 2013 (288) E.L.T. 446 (Tri.-Del) = 2013 (30) S.T.R. 326 (Tribunal) & M/s. Berger Paints India Ltd. v. CCE, J&K [2013-TIOL-829-CESTAT-DEL = 2013 (295) E.L.T. 750 (Tribunal)], have consistently held that refund of Edu. Cess is not allowed under the notification. 6.6 In view of the above, I hold that the cesses are levied under the Finance Acts and not under any of the Acts specified in the notification or the new notification. As such, refund of the same has correctly been denied by the adjudicating authority. 7. In respect of their appeal listed at Sr. No. 1 of the above table, the appellants have contended that vide judgment in the case of Reckitt Benckiser v. UOI [2011 (269) E.L.T. 194 (J&K)], ....
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....le High Court of J&K, vide its interim directions, dated 13-12-2012, has modified its order, dated 23-12-2010, as under :- "We have heard learned counsel for the parties on the question of stay of the impugned judgment. Having done so, we direct that operation of the impugned judgment shall remain stayed till further orders, subject to the petitioners [Department] releasing to the respondents [Assessees] 50% of the amount due to them in terms of impugned judgment on the respondents furnishing solvent surety to the satisfaction of the jurisdictional commissioner within four weeks of their furnishing the said surety." 7.2 However, with regards to the appellants case, I find that as per Permanent Registration Certificate E. M. No. 070101203789, dated 4-5-2011 issued by the General Manager, DIC Udhampur, the date of commencement of production of the appellants' unit is 22-4-2011, therefore, I observe that the decision of the High Court, cited supra, cannot be applied to the units which came into existence after 27-3-2008 i.e. when the first amending notification No. 19/2008, was issued. The appellants were already aware about the provisions of amending notifications, when they ....
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....mmercial production at Udhampur on 22-4-2011. The O-I-A, dated 27-8-2013 referred to above, pertained to another unit of the company situated at Samba (J&K) holding separate Central Excise Registration. 8.2 I further observe that that the O-I-A Nos. JNK-EXCUS-000-App-148 to 170-13-14, dated 27-8-2013 pertained to the departments appeal filed under Section 35E(2) of the Act on the specific point of time limitation as the party involved in that appeal have earlier taken refund by way of self credit in terms of the value addition norms under the provisions of the notification which was sanctioned to them vide appealable orders and upon quashing of amending notifications by the Hon'ble J&K High Court's order, dated 23-12-2010, they have applied for the differential amount which was erroneously sanctioned by the adjudicating authority because, once the refunds were earlier sanctioned as per the value addition norms vide the appealable orders the only recourse available to that party for getting the refund of excess amount, over and above the value addition norms, was to challenge the said appealable orders before the appropriate appellant authority, but the same was not done by th....
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.... I find that the Commissioner (Appeals) is bound by the review order of the revisionary authority issued under Section 35E of the Act. On this point, I am placing reliance on the case law of Tata Steel Ltd. v. Commissioner of Central Excise, Bangalore [2010 (17) S.T.R. 53 (Tri.-Bang.)], relevant para of which is reproduced as under :- "3.1 It was pointed out that the above findings clearly show that the Commissioner (Appeals) has travelled beyond the scope of the Revenue's grounds of appeal. Reliance was placed on the following decision of the Tribunal in the case of Carrier Aircon Ltd. v. C.C.E, New Delhi - 2003 (159) E.L.T. 315 (Tri.-Del.), wherein the appeal of the appellant was allowed on the preliminary ground that the review order of the Revisionary Authority under Section 35E(2) of Central Excise Act, 1944 travelled beyond the record of the proceedings before the Adjudicating Authority and seeking out a new case against the assessee not sustainable in law. Therefore, the order of the Commissioner (Appeals) remanding the matter for fresh decision was set aside. This case is similar to the one decided by the Delhi Bench. Therefore, on this ground alone, I set aside the ....