TaxTMI 
TaxTMI 
2024 (2) TMI 561
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....resent case are that the appellant during the period from August, 2007 to July, 2009 filed refund claim in respect of Education Cess and S&H Education Cess under exemption Notification No. 56/2002-CE dated 14.11.2002 amounting to Rs. 14,79,272/- through self-credit mode. After following the due process the original authority rejected these claims by holding that their refund claim on account of Education Cess and S&H Education Cess paid through PLA is not admissible to the appellant in terms of the said notification, as the said Education Cesses have been levied under the Finance Act, 2004 & Finance Act, 2007 respectively and not under any of the Acts as mentioned in the said notification. Aggrieved by the said order of rejection, the appel....
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....gned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law. He further submits that an amount of Rs. 22,69,936/- has already been refunded to the appellant on the same issue and for overlapping period on the strength of the Hon'ble Supreme Court's decision in SRD Nutrients Vs. CCE reported in 2018 (1) SCC 105. He further submits that once it has been held that the appellant is entitled to refund of Education Cess and S&H Education Cess on the basis of SRD Nutrients case then the department is not entitled to make recovery of the said refunded amount on the basis of subsequent decision of the Hon'ble Supreme Court in the case of Unicorn Industries reported in 2020 (3) SCC 492. He furt....
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.... find that in the impugned order the Ld. Commissioner has only relied upon the decision of the Hon'ble Apex Court in the case of Unicorn Industries cited (Supra). Further, I find that the Parallel proceedings for recovery of the self-credit/refund erroneously taken by the appellant in respect of Education Cess and S&H Education Cess during the overlapping period, were adjudicated by the original authority as well as by the appellate authorities of the department and appellant was asked to deposit an amount of Rs. 22,69,936/- . Thereafter, the CESTAT vide its Final Order No. 63301/2018 dated 25.10.2018 held that the appellant is entitled to take the refund of Education Cess and S&H Education Cess in view of the judgment of the Hon'ble Suprem....
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..... 75. In view of the facts and circumstances of the case, we find no merit in these appeals and the same are dismissed, first for the reason, they are barred by limitation, secondly, they are not maintainable and, lastly, the change of opinion of the court in a subsequent matter of another party would not give any leverage to the appellants to reopen the decisions which have attained finality." 10. Further, I also find that the Revenue filed SLP before the Hon'ble Apex Court against the decision of the Jammu and Kashmir High Court dated 23.05.2022, in the case of CGST & CE (J&K) vs. M/s Saraswati Agro and the Hon'ble Apex Court vide its order dated 04.07.2023 has upheld the decision of the High Court of Jammu and Kashmir and dismissed ....
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....econdary & Higher Educational cess on the basis of a judgment and order of the Supreme Court in case SRD Nutrients which was in vogue at the relevant time, the appellants are not entitled to make recovery of the said refunded amount on the basis of the subsequent decision of the Supreme Court rendered in the case of Unicorn Industries. If such an action is permitted, it will open a Pandora box and the lis between the parties which had attained finality will never come to an end. This would be against the public policy which envisages providing quietus to litigation at some stage." In substance, the High Court has stated that the decision in SRD Nutrients (P) Limited (supra) had attained finality and was binding on the parties thereto. Ther....