2024 (11) TMI 544

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.... the learned Commissioner (Appeals) has rejected the appeals of the appellant. Since the facts in all these appeals are identical, therefore, all three appeals are taken up together for discussion and decision. The details of all three appeals are given herein below in tabular form: Sl. No. Appeal No. Issue Involved Period of Dispute Amount Involved 1. E/646/2012 Rejected refund on account of education cess & HSEC and also appropriated amount of Rs.106/- on account of ed. cess short paid October 2010 Rs.20,378/- 2. E/647/2012 Rejected refund on account of ed. cess & HSEC paid through Cenvat Credit account of BED of Rs.3,561/- January 2011 Rs.3,561/- 3. E/648/2012 Rejected refund on accou....

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....issue is no more res integra and has been settled in favour of the appellant in the appellant's own case for the previous period vide Final Order No. 62157-62191/2018 dt. 23.03.2018 as well as vide the decisions in the following cases: • Sun Pharmaceuticals Industries vs. CCE, Jammu - 2007 (207) ELT 673 (Tri. Delhi) • Commissioner of Customs & C. Ex., Jammu vs. Bharat Box Factory Ltd - 2008-TIOL-407-HC-J&K-CX • Commissioner of C. Ex., Shillong vs. Godrej Consumer Products Ltd - 2007 (219) ELT 585 (Tri. Kolkata) 5.1 On the other hand, the learned Authorized Representative for the Revenue reiterates the findings of the impugned order and submits that this issue was considered in details by the Divisio....

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.... 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 and secondary & higher education cess which are not exempted under the said notification. 7. I note that the appellant is registered in the state of Jammu & Kashmir and were availing benefit of area based exemption under Notification No. 56/2002-CE dated 14.11.2002. The said notification provides mechanism to give effect to aforesaid exemption by way of refund of duty paid through PLA. As per the procedure, the manufacturer avails Cenvat Credit of duty/cess paid by them on inputs and utilizes whole of the CENVAT cr....

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....m duty in special cases. - (1) The Central Government may from time to time, by notification in the official Gazette, exempt (subject to such conditions as may be specified in the notification) any excisable goods from the whole or any part of duty leviable on such 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 19....

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....d secondary and higher education cess, they cannot be said to have been exempted. The High Court was right in relying upon the decision of three-Judge Bench of this Court in Modi Rubber Limited (supra), which has been followed by another three-Judge Bench of this Court in Rita Textiles Private Limited (supra). 41. The Circular of 2004 issued based on the interpretation of the provisions made by one of the Customs Officers, is of no avail as such Circular has no force of law and cannot be said to be binding on the Court. Similarly, the Circular issued by Central Board of Excise and Customs in 2011, is of no avail as it relates to service tax and has no force of law and cannot be said to be binding concerning the interpretation of th....

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....CC 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 placed for consideration. Thus, the decisions in SRD Nutrients Private Limited and Bajaj Auto Limited (supra) are clearly per incuriam. The decisions in Modi Rubber (supra) and Rita Textiles ....