2018 (8) TMI 1379

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.... the appellants are entitled to refund of Edu. Cess and Secondary & Higher Secondary Edu. Cess when they availed area based exemption under Notification No. 39/2001-CE dated 31.7.2001. 3. Both sides fairly agree that the issue is covered now by the judgment of Hon'ble Supreme Court in the case of SRD Nutrients Pvt. Ltd. Vs. Commissioner of Central Excise, Guwahati - 2017 (355) ELT 481 (SC). 4. We find that the admissibility of refund of Edu. Cess and Secondary & Higher Secondary Edu. Cess paid by the appellant along with excise duty under area based exemption Notification No. 39/2001-CE dated 31.7.2001 is considered by the Hon'ble Supreme Court in the case of SRD Nutrients Pvt. Ltd. (supra). Their Lordships observed as follows....

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....d not be any Education Cess as well, inasmuch as Education Cess @ 2% is to be calculated on the aggregate of duties of excise. There cannot be any surcharge when basic duty itself is Nil. 22. It is rightly pointed out by the learned counsel for the appellants that the CESTAT in the earlier two judgments given in Bharat Box Factory Ltd. and Cyrus Surfactants Pvt. Ltd. held that Education Cess and Higher Education Cess would also refundable along with excise duty and in view thereof, another co-ordinate Bench of CESTAT could not take a contrary view in Jindal Drugs Ltd. Judicial discipline warranted reference of the matter to the Larger Bench which it did not do. In the impugned judgment, while preferring to follow the view taken in Jindal....

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.... by combined reading of sub-sections (1), (2) & (3) of Section 93. xxx xxx xxx The Explanation appended to Notification dated 26-6-2001 included 18. within the ambit of Excise Duty any special Excise Duty collected under any Finance Act when under Finance Act, 2004 it was ordained that Education Cess to be collected as surcharge on Excise Duty payable on excisable goods and shall be a Duty of Excise, it became a special Duty of Excise by way of Education Cess chargeable and collected under Finance Act, 2004 and fell within the ambit of clause (3) of Explanation appended to Notification dated 26-6-2001. Consequently, rebate became available on collection of surcharge on Excise Duty under Finance Act, 2004 in terms of existi....