Custom, Excise & Service Tax Tribunal
M/S. Ambika International vs Cce, Chandigarh on 24 September, 2010
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Block No. 2, R.K. Puram, New Delhi-110 066 COURT No. I Date of hearing/decision: 24th September, 2010 CENTRAL EXCISE APPEAL NO. 1491-1492 OF 2010 (Arising out of Order-in-Appeal No. 81-82/CE/Appeal/Chd-II(JK)/10 dated 26.02.2010 passed by the Commissioner (Appeals), Central Excise, Chandigarh-II, Chandigarh) For approval and signature: Honble Shri Justice R.M.S. Khandeparkar, President, Honble Shri Rakesh Kumar, Member (Technical) 1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3 Whether Their Lordships wish to see the fair copy of the Order? 4 Whether Order is to be circulated to the Departmental authorities? M/s. Ambika International Appellants Versus CCE, Chandigarh Respondent Appearance: Shri Pushkar K. Singh with Sh. S. Sunil, Advocates for the appellants; Shri Amrish Jain, D.R. for the respondent Coram: Honble Shri Justice R.M.S. Khandeparkar, President; Honble Shri Rakesh Kumar, Member (Technical) ORAL ORDER NO.________________
Per Justice R.M.S. Khandeparkar:
Heard learned Advocate for the appellants and learned D.R. for the respondent in terms of order passed today in stay application No. 1522-1523/2010. Since common questions of law and facts arise in both the appeals, they were heard together and are being disposed off by this common order.
2. The appellants filed refund claims on 7.4.2008 for Rs. 9,45,868/- and Rs.4,72,935/- on account of Education Cess and Higher Education Cess respectively paid through PLA for the month of March, 2008 under Notification No. 56/2002-CE dated 14.11.2002 as amended, in appeal No. 1491. Similarly, the appellants filed refund claim on 7.3.2008 for Rs. 4,72,555/- and Rs. 2,36,287/- on account of Education Cess and Higher Education Cess respectively paid through PLA for the month of February, 2008 under Notification No. 56/2002-CE dated 14.11.2002, as amended. The said claims were disallowed by the Adjudicating Authority and the appeals against the same did not result in any fruitful result to the appellants, and therefore, present appeals.
3. Undisputedly, the issue sought to be raised in this matter is fully covered by the decision of the Tribunal in case of CCE, Jammu vs. Jindal Drugs Ltd. & Ors., reported in 2010 (97) RLT ONLINE 13 (CESTAT-DEL.). It has been clearly held as under:-
For the reasons stated above, therefore, we find that in terms of the notification in question, there was no prohibition for levy and collection of education cess or higher education cess in respect of the levy and payment of excise duty and additional excise duty pertaining to the goods which were entitled for the exemption benefit under the said notification. The said notification nowhere exempts the liability of the manufacture to pay the education cess or the higher education cess. The said notification has been issued strictly under three enactments specified in the said notification and exemption does not relate to the imposition of education cess under Finance Act either 2004 or 2007. There is no question of refund of education cess or higher education cess paid in the matter in hand by those who have availed the benefit under exemption Notification No. 56/2002 dated 14.11.2002. hence the order passed by the Commissioner (Appeals) could not be sustained and is liable to be set aside and order passed by the original authority to be restored with all consequential results. In view of the said decision which clearly applies to the facts of the case in hand, the appeals are liable to be dismissed and are accordingly hereby dismissed.
(JUSTICE R.M.S. KHANDEPARKAR) PRESIDENT (RAKESH KUMAR) MEMBER (TECHNICAL) RK 3