TaxTMI 
TaxTMI 
2022 (9) TMI 215
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....Education Cess on Paper Cess up to 06.01.2014. On 07.01.2014, the Central Board of Excise & Customs (CBEC) issued a Circular stating that Education Cess and Secondary and Higher Education Cess is not to be calculated on other Cesses. In view of the aforesaid Circular No.978/2/20214-CX (F.No.262/2/2008-CX.8) dated 07.01.2014, the Appellant realized that the payments made by them so far have been made erroneously and the Department had mis-directed and collected the Tax without authority of law. Accordingly the Appellant filed refund claims. A Show Cause Notice dated 29.09.2014 was issued proposing to reject the refund claim on the ground that the Appellant did not file any Appeal against the Adjudication orders. 2. In response to the Show Cause Notice, the Appellant submitted that the amounts have been collected by the Department wrongfully and the Department cannot retain the same. The amounts deposited so far being Education Cess on Paper Cess which they were not required to deposit has to be treated as a deposit with the Government and should be refunded to the Appellant. However, the Adjudicating authority rejected the refund claim by applying Section 11B of the Central Excis....
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.... is clarificatory in nature and has retrospective operation and in that view of the matter, even the payment made in compliance of Adjudication Order would be amounting to collection and keeping of the said Cess amount by the Govt. is without authority of law and hence, the said amount is payable to the Appellant. III. For that the Ld.Commissioner(Appeals) failed to appreciate that the Commissioner(Appeals) cannot remand the matter in view of the decisions of the Apex Court in the case of MIL India and he has already decided that the part of the Refund Claim amount is not covered by any Adjudication Order. The said amount is required to be refunded for which 11B has no application. IV. For that the Ld.Commissioner(Appeals) failed to appreciate that the matter of collection of Cess on Cess is not permissible since Cess is recoverable on duty. Other Cess recovered under different Acts are not duty and hence the Cess was never recoverable on other Cesses and the same was without the authority of law and the amount realized shall be refunded without raising any question of filing Appeal or compliance of Section 11B of the Central Excise Act, 1944. V. For that....
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....under Section 11B of the Central Excise Act shall apply as this is not a case of 'unconstitutional levy' [Mafatlal - 1997 (87) E.L.T. 247 (SC)]. This position has been reiterated in Veer Overseas [2018 (15) GLTL 59 (Tri.- LB)]. In the absence of any decision of the jurisdictional High Court on this point, the Tribunal's Larger Bench decision shall apply in the case of Kashmir Conductors [1997 (96) E.L.T. 257 (Tri.)].In any event, the principle of unjust enrichment shall apply as held in the judgement of Mafatlal - 1997 (89) E.LT. 247 (SC) and Sahkari Khand Udyog Mondal - 2005 (181) E.L.T. 328 (SC). The Appellant has failed to produce any evidence to get over the bar of unjust enrichment. 7. Heard both sides and perused the appeal records and the written submissions filed by both the sides. 8. The only issue in this Appeal is whether the Paper Cess is to be included in the calculation of Education Cess and Secondary and Higher Education Cess. The Department took a stand that Education Cess is levied on the excise duty and Cess on paper is also a duty of excise, therefore, it should be included. 9. The Board Circular No.978/2/20214-CX (F.No.262/2/2008-CX.8) dated 07.01.2014 ....
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.... by the Department of Revenue. In the present case even though the Cess on Paper is a duty of excise, it is not levied by the Department of Revenue, Ministry of Finance. It is levied under a different enactment namely Industries (Development & Regulation) Act, 1951, though it is collected by the Department of Revenue. Paper Cess is not levied by the Department of Revenue, it is levied by the Industrial Development, Ministry of Commerce and Industry. No doubt it is collected by the Department of Revenue, but not levied by it. Hence Paper Cess is not includible. I note that the lower authorities were proceeding on an erroneous premise when they considered the Paper Cess as a levy by the Central Government in the Ministry of Finance, Department of Revenue. They obviously lost sight of the Circular No. 978/2/2014-CX, dated 7-1-2014 where it has been clarified that the Education Cess and the Secondary and Higher Education Cess are not to be calculated on cesses which are levied under Acts administered by Department/Ministries other than Ministry of Finance (Department of Revenue), but rather only collected by the Department of Revenue in terms of those Acts. 11. I find that decision ....
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....f 1986), being goods manufactured or produced, shall be a duty of excise (in this section referred to as the Education Cess on excisable goods), at the rate of two per cent., calculated on the aggregate of all duties of excise (including special duty of excise or any other duty of excise but [excluding Education Cess, and Secondary and Higher Education Cess levied under Section 136 of the Finance Act, 2007] on excisable goods) which are levied and collected by the Central Government in the Ministry of Finance (Department of Revenue), under the provisions of the Central Excise Act, 1944 (1 of 1944) or under any other law for the time being in force. (2) The Education Cess on excisable goods shall be in addition to any other duties of excise chargeable on such goods, under the Central Excise Act, 1944 (1 of 1944) or any other law for the time being in force. (3) The provisions of the Central Excise Act, 1944 (1 of 1944) and the rules made thereunder, including those relating to refunds and exemptions from duties and imposition of penalty shall, as far as may be, apply in relation to the levy and collection of the Education Cess on excisable goods as they apply in re....
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....l Government in the Ministry of Finance (Department of Revenue), under the provisions of the Central Excise Act, 1944 or under any other law for the time being in force. Thus, Education Cess is levied on the aggregate of all duties of excise (except to the extent indicated hereinabove) which are levied and collected by the Central Government in the Ministry of Finance (Department of Revenue) under the provisions of the CE Act or any other law for the time being in force. The provisions of Section 138 of the Finance Act, 2007 are identically worded except that the rate of Secondary and Higher Secondary Education Cess is one per cent. Thus, Education Cess and Secondary and Higher Secondary Education Cess being a cess levied at a percentage of the aggregate of all duties of excise, the basic requirement for levy thereof is the existence of excise duty. In the present case, as noted hereinabove, oil cess is not a duty of excise, under the circumstances, the basic requirement of levy of such cesses is not satisfied. Furthermore, for the purpose of levy of Education Cess and Secondary and Higher Secondary Education Cess, two other conditions precedent, are required to be satisfied, viz.,....
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....paid under a mistake of law. The provisions of Section 11B of the Central Excise Act, 1944 would, therefore, not be applicable to an application seeking refund thereof. As held by the Supreme Court in U.P. Pollution Control Board v. Kanoria Industrial Ltd., (supra), a refund is claimed on the ground that the provisions of the Act under which it was levied is or has been held to be unconstitutional, such a claim, being a claim outside the purview of the enactment, can be made either by way of suit or by way of writ petition. In the present case, though the provision under which the amount was paid was not declared unconstitutional, it has been declared that the same applies only in cases where the duty is both, administered and collected, by the Department of Revenue, whereas in the present case, the Oil Cess, though collected by the Department of Revenue is administered by the Ministry of Petroleum and Natural Gas. The petitioner was therefore, wholly justified in making the application for refund under a mistake of law and not under Section 11B of the Central Excise Act, 1944. 13. The next question that needs to be addressed is the aspect of limitation. The refund applica....
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.... the trade and field formations, the C.B.E. & C. was required to issue the circular dated 7-1-2014 clarifying the issue. As noticed earlier, the petitioner had all along, right from July, 2004 been paying Education Cess and subsequently, from the year 2007 was paying Secondary and Higher Secondary Education Cess, till April, 2014. It was only when the Circular dated 7-1-2014 came to be issued by the C.B.E. & C., clarifying the issue, that the petitioner came to know about its mistake. Considering the nature of the mistake and the fact that the issue was not free from doubt till the above circular came to be issued by the C.B.E. & C., it also cannot be said that the petitioner could with reasonable diligence have discovered the mistake. It appears that it is only sometime after the Education Cess and Secondary and Higher Secondary Education Cess came to be paid for the month of April, 2014 that the petitioner came to know about its mistake and in July, 2014, it filed the application for refund before the second respondent. Since the period of limitation begins to run only from the time when the applicant comes to know of the mistake, the application made by the petitioner was well w....
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....rom them". Further, it is mentioned in the said certificate that "this certificate has been issued on the request of JTI for onward submission to the concerned Central Excise Authorities, in support of refund claim of Primary Education Cess and Secondary & Higher Education Cess on OID Cess. This certificate should not be used other than the intended purpose, without obtaining written permission from them". This certificate has been issued by the customer (M/s. IOCL), on the request of the claimant and it has been mentioned that it should not be used anywhere else, without their prior written permission. Hence, this certificate is merely statement without being backed by any supporting documents on the basis of which the veracity of the content could be verified. Hence, this certificate is not having any evidential value. On verification of contents of the said certificates, it is also observed that these are mere statements, without giving the specific details of the relevant financial record i.e. balance sheet, from which the veracity of the said statement could be verified. The above said certificates itself does not have any evidential value, unless the content....