TaxTMI 
TaxTMI 
2014 (6) TMI 939
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.... 1048/AC/R(C)/JMU/2013, dated 2-7-2013 (Annual differential refund 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....
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....e, the adjudicating authority has sanctioned the amount of refund as per the value addition norms, in terms of para 2 of the new notification. 3. Being aggrieved, the appellants 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 collec....
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....only basis to be followed even under the Central Excise, Customs and Service Tax Laws. (vii) That the adjudicating authority ought to have followed the decision in the case of M/s. Bharat Box Factory Ltd. v. CCE [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, b....
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....he cesses levied under the Finance Act, 2004 & 2007, respectively, under the notification or the new notification. I find that the notification and the new notification provides for exemption to the goods manufactured in the state of Jammu & Kashmir from that much of duty of excise 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'bl....
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.... (15) (Tri.-Del.)], has held that the cesses levied under the Finance Acts, 2004 & 2007 are not covered by the notification. Relevant para of this judgment is reproduced as under : "6.2 But the education cess leviable under Section 91 of the Finance Act, 2004 and S&H cess leviable 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 ....
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....g, in para 7 of its judgment holding as under : "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 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 n....
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....its judgment, dated 23-12-2010, referred to above by the appellants, has held that the benefit under the notification is a promise which cannot be detracted. The department filed appeal before the division bench of the Hon'ble High Court of J&K against its judgement, dated 23-12-2010 and pending final decision, the Hon'ble 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 app....
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....osed vide the amending notifications, as such, they are entitled for refund of full amount. 8.1 As regards contention of the appellants enumerated in para 8(i) above, I find that the referred O-I-A Nos. JNK-EXCUS-000-App-148 to 170-13-14, dated 27-8-2013, do not pertains to the appellants unit as contended by the appellants, which started commercial 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....
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....late Tribunal or the Commissioner (Appeals), as the case may be. as if such application were an appeal made against the decision or order of the adjudicating authority and the provisions of this Act regarding appeals, including the provisions of sub-section (4) of Section 35B shall, so far as may be, apply to such application." 8.4 From the above discussed provisions of law, 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 C....
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....s contention of the appellants, I observe that the Hon'ble High Court of J&K judgement, dated 23-12-2010 pertain to the amendments in the notification with regard to restriction in admissibility of refund of duty in terms of the value addition norms. The decision of the Hon'ble High Court do not pertain to the operation of the new notification. As such, the reliance placed by the appellants on this judgement of the Hon'ble High Court of J&K, with regard to their claim for refund of duty under the new notification is misplaced. I observe that the amount of refund admissible under the new notification is governed by para 2 of the new notification and accordingly, the adjudicating authority has rightly determined the refund in accordance with para 2 of the new notification and has rejected the excess amount claimed by the appellants. 9. The appellants have also contended that the impugned orders are bad in law and are violative of the principles of natural justice inasmuch as the same have been passed without affording any opportunity of personal hearing and the impugned orders have also been passed without issuance of Show Cause Notices. I find that these contentions of the a....