TaxTMI 
TaxTMI 
2024 (6) TMI 1107
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....ccount of education cess and secondary & higher education cess paid through Cenvat Credit account of BED; and also appropriated an amount from the sanctioned refund amount. Aggrieved by the order of the adjudicating authority, the appellant filed appeal before the Commissioner (Appeals), who has upheld the Order-in-Original and rejected the appeal of the appellant. Hence, the appellant preferred the present appeal. 3. Heard both the parties and perused the material on record. 4.1 The learned Counsel for the appellant submits that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law. 4.2 He further submits that the appellant filed a refund claim of Rs.21,18,710/- on account of duty paid in PLA (Personal Ledger Account) as balance of total duty payable in the month of February 2011 after utilization of Cenvat Credit Balance. He submits that as per Notification No. 56/2002-CE, the said amount paid in cash shall be eligible for refund. 4.3 He further submits that the Adjudicating Authority has partly allowed the refund claim made by the appellant but partly rejected the refund of Rs.62,842/- on account ....
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....-CE cannot utilize BED Credit for payment of education cess and S & H cess which are not exempted under this notification; and (b) Extra BED paid through PLA on account of diversion of BED Credit for payment of education cess and S & H cess would not be refundable under Notification No. 56/2002-CE." 5.2 The learned AR further submits that this issue has now been finally settled by the Hon'ble Apex Court in case of M/s Unicorn Industries vs. Union of India - 2019 (370) ELT 3 (SC) whereby the Hon'ble Apex Court has held that the earlier decision of the Supreme Court in the case of SRD Nutrients Pvt Ltd vs. Commissioner - 2017 (355) ELT 481 (SC) as it held to be per incuriam. 6. After considering the submissions made by both the sides and perusal of the material on record, I find that the as regards the rejection of refund claim of Rs.62,842/- is concerned, the same cannot be allowed in view of the decision of Division Bench of this Tribunal in the case of Commissioner of C.E., Jammu vs. R.B. Jodhamal & Co. Pvt Ltd (supra), wherein it has been held that a unit availing of exemption under Notification No. 56/2002-CE cannot utilize BED Credit for payment of education cess....
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....h goods. (2) The Central Board of Excise and Customs may by special order in each case exempt from the payment of duty, under circumstances of an exceptional nature, any excisable goods." The word "duty" is defined under Rule 2(v) to mean the duty as levied under the Act. 40. Notification dated 9-9-2003 issued in the present case makes it clear that exemption was granted under Section 5A of the Act of 1944, concerning additional duties under the Act of 1957 and additional duties of excise under the Act of 1978. It was questioned on the ground that it provided for limited exemption only under the Acts referred to therein. There is no reference to the Finance Act, 2001 by which NCCD was imposed, and the Finance Acts of 2004 and 2007 were not in vogue. The notification was questioned on the ground that it should have included other duties also. The notification could not have contemplated the inclusion of education cess and secondary and higher education cess imposed by the Finance Acts of 2004 and 2007 in the nature of the duty of excise. The duty on NCCD, education cess and secondary and higher education cess are in the nature of additional excise duty and....
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....ferent purpose cannot be said to have been exempted. 42. The decision of Larger Bench is binding on the Smaller Bench has been held by this Court in several decisions such as Mahanagar Railway Vendors" Union v. Union of India & Ors., (1994) Suppl. 1 SCC 609, State of Maharashtra & Ors. v. Mana Adim Jamat Mandal, AIR 2006 SC 3446 and State of Uttar Pradesh & Ors. v. Ajay Kumar Sharma & Ors., (2016) 15 SCC 289. The decision rendered in ignorance of a binding precedent and/or ignorance of a provision has been held to be per incuriam in Subhash Chandra & Ors. v. Delhi Subordinate Services Selection Board & Ors., (2009) 15 SCC 458, Dashrath Rupsingh Rathod v. State of Maharashtra, (2014) 9 SCC 129, and Central Board of Dawoodi Bohra Community & Ors. v. State of Maharashtra & Ors., (2005) 2 SCC 673 = 2010 (254) E.L.T. 196 (S.C.). It was held that a smaller bench could not disagree with the view taken by a Larger Bench. 43. Thus, it is clear that before the Division Bench deciding SRD Nutrients Private Limited and Bajaj Auto Limited (supra), the previous binding decisions of three-Judge Bench in Modi Rubber (supra) and Rita Textiles Private Limited (supra) were not place....