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3.2 In support of his submissions, the learned counsel placed reliance upon the decision of this court in the case of HC-NIC Page 6 of 80 Created On Sat Jun 18 03:17:19 IST 2016 C/SCA/2556/2015 JUDGMENT Commissioner v. Sahakari Khand Udyog Mandli Ltd., 2011 (263) ELT 34 (Guj.) wherein, the court in the context of the Sugar Cess Act, 1982 which contained similar provisions, held that the provisions of levy and collection of cess under the Central Excise Act and the rules thereunder have been incorporated and are to be read as part and parcel of the Cess Act. By adopting this legislative procedure, the legislature has used a well known legislative tool, but from the said exercise, it cannot be inferred or stated that the sugar cess imposed under the provisions of the Cess Act assume the characteristic of central excise duty so as to warrant calculation of education cess on the amount of cess so collected. The court held that the sugar cess levied and collected cannot be equated with duty of central excise and therefore, cannot be treated to be part and parcel of the amount on which the education cess has to be calculated. It was submitted that the above decision was squarely applicable to the facts of the present case and that the second respondent, in gross violation of the judicial discipline, has ignored the said order.

7. From the submissions advanced by the learned counsel for the respondents as well as from the findings recorded in the impugned order, it is apparent that it is the case of the respondents that the refund claim has not been filed under the provisions of section 11B(1) of the Central Excise Act, 1944, but has been filed seeking the benefits on the basis of principles of natural justice. In this regard, it is the case of the petitioner that it had paid education cess under a mistake of law. By the circular dated 7th January, 2014, the Central Board HC-NIC Page 22 of 80 Created On Sat Jun 18 03:17:19 IST 2016 C/SCA/2556/2015 JUDGMENT of Customs and Excise, has pursuant to representations received from trade and field formations seeking clarification as to whether the Education Cess chargeable under section 93(1) of the Finance Act, 2004 and the Secondary and Higher Secondary Education Cess chargeable under section 138(1) of the Finance Act, 2007 should be calculated taking into account the cesses which are collected by the Department of Revenue, but levied under an Act which is administered by different Departments, such as, Sugar Cess levied under Sugar Cess Act, 1982, Tea Cess levied under the Tea Act, 1953, etc., clarified that a cess levied under an Act which is not administered by Ministry of Finance (Department of Revenue) but only collected by the Department of Revenue under the provisions of that Act cannot be treated as a duty which is both levied and collected by the Department of Revenue. It has been reiterated that the Education Cess and the Secondary and Higher Secondary Education Cess are not to be calculated on cesses which are levied under Acts administered by Department/Ministries other than Ministry of Finance (Department of Revenue) but are only collected by the Department of Revenue in terms of those Acts.

7. Similarly, when one reads sub-section (2) of Section 3 of the Cess Act, it becomes clear that what is levied under sub-section (1) is in addition to the duty of excise leviable on sugar under the Central Excise Act, 1944, or any other law for the time being in force. Once again, pointing out to the Scheme which is distinct from the provisions of the Central Excise Act read with the Tariff Act. When one reads sub-section (4) of Section 3 of the Cess Act, it becomes clear that for the purposes of levy and collection of the cess levied under sub-section (1) of Section 3 of the Cess Act, the procedural provisions relatable to levy and collection of the duty of excise, provisions relating to refund and exemption from duty, etc., are made applicable by invoking principle of incorporation. In other words, instead of bodily repeating the provisions of levy and collection of cess by this provision, the provisions under the Central Excise Act and the Rules thereunder have been incorporated and are to be read as part and parcel of the Cess Act. By adopting this legislative procedure, the legislature has used a well known legislative tool, but from the said exercise, it cannot be inferred or stated that the sugar cess imposed under the provisions of the Cess Act assume the characteristic of central excise duty so as to warrant calculation of education cess on the amount of cess so collected.

9. As regards the finding that the circular dated 07.01.2014 relates only to the cesses collected by the Department of Revenue, but levied under an Act which is administered by different Department, such as, Sugar Cess levied under the Sugar Cess Act, 1982, Tea Cess levied under the Tea Act, 1953 etc., relates only to the Sugar Cess and Tea Cess levied under the said Acts is concerned, in the opinion of this court, such finding is based upon a complete misreading of the said HC-NIC Page 30 of 80 Created On Sat Jun 18 03:17:19 IST 2016 C/SCA/2556/2015 JUDGMENT circular, inasmuch as, the adjudicating authority has completely ignored the fact that the words "Sugar Cess levied under the Sugar Cess Act, 1982, Tea Cess levied under Tea Act, 1953" are followed by the expression "etc.". Therefore, it is evident that the sugar cess and tea cess levied under the above Acts are merely illustrative in nature and what is meant by the circular is that the cesses which are collected by the Department of Revenue, but levied under an Act which is administered by different Department are not chargeable to Education Cess and Secondary and Higher Secondary Education Cess chargeable under the provisions of the Finance Acts, 2004 and 2007 respectively.