Custom, Excise & Service Tax Tribunal
Commissioner Of Customs ... vs Jsw Energy Ltd on 12 February, 2026
(1)
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
HYDERABAD
Division Bench - Court No. - I
Customs Appeal No. 23804 of 2014
(Arising out of Order-in-Appeal No.21 to 24/2014 (G) CUS dt.25.09.2014 passed by
Commissioner of Customs, Central Excise & Service Tax (Appeals), Guntur)
Commissioner of Customs
Preventive - Vijayawada ......Appellant
55-17-3, C-14, 2nd Floor, Industrial Area,
Autonagar, Vijayawada, AP - 520 007
VERSUS
JSW Energy Ltd
PB No.9, Toranagallu, Bellary Dist.,
Bellary, Karnataka - 583 123 ......Respondent
WITH Customs Appeal No. 23852 of 2014 (Arising out of Order-in-Appeal No.21 to 24/2014 (G) CUS dt.25.09.2014 passed by Commissioner of Customs, Central Excise & Service Tax (Appeals), Guntur) Commissioner of Central Excise & Service Tax, Guntur ......Appellant PB No.331, CR Buildings, Kannavarithota, Guntur, Andhra Pradesh - 522 004 VERSUS JSW Energy Ltd PB No.9, Toranagallu, Bellary Dist., Bellary, Karnataka - 583 123 ......Respondent WITH Customs Appeal No. 23853 of 2014 (Arising out of Order-in-Appeal No.21 to 24/2014 (G) CUS dt.25.09.2014 passed by Commissioner of Customs, Central Excise & Service Tax (Appeals), Guntur) Commissioner of Central Excise & Service Tax, Guntur ......Appellant PB No.331, CR Buildings, Kannavarithota, Guntur, Andhra Pradesh - 522 004 VERSUS JSW Energy Ltd PB No.9, Toranagallu, Bellary Dist., Bellary, Karnataka - 583 123 ......Respondent AND Customs Appeal No. 23854 of 2014 (Arising out of Order-in-Appeal No.21 to 24/2014 (G) CUS dt.25.09.2014 passed by Commissioner of Customs, Central Excise & Service Tax (Appeals), Guntur) Commissioner of Central Excise & Service Tax, Guntur ......Appellant PB No.331, CR Buildings, Kannavarithota, Guntur, Andhra Pradesh - 522 004 VERSUS JSW Energy Ltd PB No.9, Toranagallu, Bellary Dist., Bellary, Karnataka - 583 123 ......Respondent (2) Appearance:-
Shri B. Subhas Chandra Bose, AR for the Appellant. Shri Chirag Shetty, Advocate for the Respondent. Coram: HON'BLE MR. A.K. JYOTISHI, MEMBER (TECHNICAL) HON'BLE MR. ANGAD PRASAD, MEMBER (JUDICIAL) FINAL ORDER No. A/30087-30090/2026 Date of Hearing: 12.02.2026 Date of Decision: 12.02.2026 [Order per: A.K. JYOTISHI] The Department are in appeals against the common order of the Commissioner (Appeals) dt.25.09.2014, whereby, the order was passed in favour of the respondent i.e., M/s JSW Energy Ltd.
2. The brief facts of the case are that the respondents are engaged in the business of production of electricity. They imported non-coking coal falling under Chapter 2701 1920 of the First Schedule to the Customs Tariff Act, 1975 (CTA) to be used in the generation of electricity, through Krishnapatnam Port, AP. While filing the Bills of Entry (BEs) to import coal, the respondents have shown BCD, CVD, Clean Energy Cess (CEC) and also Education Cess (EC) at 2% and Secondary & Higher Education Cess (SHEC) at 1% on CVD on BEs and paid the same while clearing the coal imported. The EC & SHEC are payable on the duties of customs in addition to payment of CVD. Having paid the 2% EC and 1% SHEC on CVD, they claimed refund of the said EC & SHEC on the grounds that the EC is on CVD paid on coal and is exempted under Notification No.28/2010-CE and SHEC is exempted under Notification No.29/2010-CE dt.22.06.2010. The Assistant Commissioner of Customs, Krishnapatnam rejected the refund claims in respect of EC and SHEC paid on CVD at the time of import. The details of OIOs, BEs and the amounts are as under.
Refund Amount
S.No. OIO No. & Date BE No. with date
(Rs.)
(i) 35/11-12
dt.9.4.2011
18/2012 (ii) 224/11-12
1. 19,26,442/-
dt.22.10.2012 dt.9.8.2011
(iii) 289/11-12
dt.5.9.2011
18/2012-R
2. 5/11-12 dt.6.4.2011 3,37,154/-
dt.17.10.2012
19/2012-R
3. 9/11-12 dt.8.4.2011 2,39,951/-
dt.18.10.2012
(3)
21/2012
4. 75/11-12 dt.16.5.2011 8,03,905/-
dt.02.12.2012
Total Refund Claimed 33,07,452/-
3. The department has mainly contested that the order of the
Commissioner (Appeals) is not legal and proper in view of the fact that Excise duty on coal was levied first time from 01.03.2011 and CVD levied under section 3(1) of the CTA, 1975, on said imported coal would be equal to excise duty payable on the like goods manufactured in India. Whereas, CEC on coal production was levied at Rs.50 PMT first time since 01.07.2010 under section 83 of the Finance Act, 2010 (FA) read with goods including coal mentioned in Tenth Schedule to the FA, 2010.
4. Learned AR for the department is essentially submitting that the notifications 28/2010 & 29/2010 are only exempting collection of EC & SHEC in relation to imposition of CEC and the said notifications cannot be made applicable for exempting payment of such Cesses from excise duty, which has been admittedly levied only post 01.03.2011. He further submits that reliance placed by the Commissioner (Appeals) on the Tribunal's order dt.29.07.2013 in the case of Singareni Collieries Co Ltd Vs CCE, Hyderabad- II [2014 (300) ELT 527 (Tri-Bang)] was only an interim order (stay order), while deciding the said application and therefore, the same could not have been relied upon by the Commissioner (Appeals) to arrive at his conclusion that they were eligible for these two exemption notifications and hence, eligible for refund. He further submits that the said matter was finally disposed of by this Bench, vide Final Order No. A/30600-30602/2016 dt.26.07.2016, in the case of Singareni Collieries Co Ltd Vs CCE, Hyderabad- II [2016 (341) ELT 378 (Tri-Hyd)]. Therefore, according to the learned AR, the Original Authority has rightly rejected the refund claims made by the respondents and the order of Commissioner (Appeals) allowing the appeal of the respondents and thereby granting refund, is not legal and proper.
5. On the other hand, learned Advocate for the respondents fairly concedes that insofar as exemption of EC & SHEC in relation to levy of excise duty on coal is concerned, these two notifications may not be applicable, as such, however, he is submitting that the calculation of these two cesses need to be re-verified to confirm as to whether these two cesses were paid only in relation to CVD or were also paid in relation to CEC. Admittedly, CEC was also paid at the time of import, apart from CVD. Therefore, while EC & SHEC will be applicable on CVD amount, the same cannot be applied to CEC in terms of the notifications, referred supra.
(4)6. Heard both sides and perused the records.
7. We find that the short issue to be decided is whether the notifications claimed by the respondents for seeking refund is available for exemption of EC & SHEC on the clearance of like goods where Central Excise duty is payable or otherwise. We find that a plain reading of these two notifications would indicate that they are essentially exempting payment of EC & SHEC while discharging CEC in respect of goods falling under Tenth Schedule. That being so, these two notifications cannot be construed to have similar exempting effect in respect of Central Excise duty payable on the coal in terms of First Schedule at the time of clearance. It is also obvious that this duty of Central Excise, along with applicable Cesses are required to be paid as CVD in respect of imported goods. Thus, we are in agreement with the view of the department that these two notifications cannot be made applicable to EC & SHEC leviable on Central Excise duty and consequently, on CVD. Therefore, to that extent, the respondents will not be entitled for any refund. However, we also find that to the extent any cess is paid on CEC at the time of import would not survive as EC & SHEC are clearly exempted in respect of CEC in terms of the two exemption notifications. We further find that this issue has been dealt in detail by this Bench in the case of Singareni Collieries Co Ltd (supra), where similar issue has been examined and finally, it was decided that exemption of EC & SHEC under notifications 28/2010 & 29/2010 both dt.26.02.2010 is applicable only in respect of CEC levied under FA, 2010 but will not be applicable with respect to Central Excise duty levied on coal w.e.f. 01.03.2011. We find that this conclusion based on detailed analysis is squarely applicable to the current factual matrix, however, as discussed supra, in order to ascertain that there is any levy of EC & SHEC towards CEC paid on imported goods also or otherwise, the matter is remanded back only for the limited purpose of verification and re-calculation of refund amount, if any.
8. Appeals are allowed by way of remand only for the limited purpose of re-calculation of the amount of refund admissible, if any, as per law.
(Dictated and pronounced in the Open Court) (A.K. JYOTISHI) MEMBER (TECHNICAL) (ANGAD PRASAD) MEMBER (JUDICIAL) Veda