TaxTMI 
TaxTMI 
2018 (3) TMI 345
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....t the appellant have been manufacturing the dutiable goods and clearing the same on payment of appropriate duty and have been availing/taking CENVAT credit of Central Excise duty/Service tax paid on various inputs and input services received by them and utilizing the same for discharge of Central Excise duty on the aforesaid dutiable goods manufactured and cleared by them, in terms of Rule 3 of the CENVAT Credit Rules, 2004. They were reversing/paying 6% of the value of non-dutiable/non-excisable goods in terms of Rule 6 of CENVAT Credit Rules, 2004. The appellant have filed a refund claim on 03.09.2015 amounting to Rs. 29,08,953/- claiming that they had paid Education Cess @2% and Secondary & Higher Education Cess @1% on the amount (i.e., ....
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....e doctrine of unjust enrichment squarely applies and found the claim not tenable and liable for rejection. A notice was served to the appellant to show cause as to why the claim of refund should not be rejected based on the Education Cess and Secondary & Higher Education Cess has already been collected from their customers; time limit under Section 11B can be made applicable in this case; the provisions of Section 12A and Section 12B of the said act can also be made applicable in this case. After observing due process, the adjudicating authority rejected the refund claim of Rs. 29,08,953/- vide Order-in-Original (Refunds) No. 19/2015-16 dated 01.12.2015. 4. Aggrieved by the Order-in-Original the respondent herein preferred an appeal befo....
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.... the First Appellate Authority are not relevant and the relevant case laws are HPCL Vs. CCE [2015 (317) ELT 379] wherein it was held that assessee has to satisfy twin conditions as the limitation and bar of unjust enrichment and lies on the claimant of refund. It is the submission that in the case in hand the respondent herein has not been able to satisfy twin conditions. It is his further submission the assesses are not eligible for refund as they did not pay Education Cess and SHE Cess to the Department not they submit any evidence to state the Revenue had directed to them do so hence the claim filed by them for the period beyond one year from the date recovery of mistake has time barred as refund Governed by the Section 11B of the Centra....
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....ucation Cess is liable to be paid on 6% amount; iii) Whether the time limit under Section 11B can be applicable for refund of Education Cess/SHE Cess; iv) Whether the doctrine of unjust enrichment can be made applicable. I find the First Appellate Authority after considering the entire case laws and the provisions of Rule 8 of Central Excise Rules read with Rule 2 of CENVAT Credit Rules, 2002 and Section 3 of the Central Excise Act, 1944, held that the amounts paid by the appellant which is equivalent to 6% or 8% of the value of the exempted goods by any stretch of imagination cannot be considered as duty. The findings by the First Appellate Authority on this point are correct and I concur with them while reproducing th....
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....6 of CCR 2004 is not a duty of excise. 8. In my considered view, if the amounts which is required to be paid as reversal for the exempted goods cleared is in itself has not a duty but an amount, the question of levy of Education Cess would not arise. I find that Learned Commissioner (Appeals) was correct in coming to such a conclusion and I reproduce the said findings in paragraph No. 5.4: 5.4 Regarding contention of levy of Education Cesses, I would like to refer the language used in the Section 93 of the Finance (NO 2) Act, 2004, wherein it was categorically stated that The Education Cess levied under Section 91, in the case of goods specified in the First Schedule to the Central Excise Tariff Act, 1985 being goods manufacture....
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....lity of unjust enrichment, I find that the First Appellate Authority has clearly recorded the following findings: 5.7 In respect of applicability of unjust enrichment concerned, the appellant contended that bar of unjust enrichment is not applicable in as much as they made back calculations to arrive at the value of amount payable under Rule 6 of CCR 2004. In the impugned order the department extended the cum duty benefit to the appellant to pay 8% of amount and Education Cesses. The said act by the Department is self explanatory that the appellants have not collected any amount from the customers as Education Cesses. Otherwise the department would have demanded 8% of amount considering the amount collected as part of assessable va....