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8. Drawing our attention to the phraseology used in the said notification, it was contended that the same speaks of payment of collection consequent to the levy of the duty. Further, referring to Section 93 of the Finance Act, it was also contended that the education cess and higher education cess was calculated and levied and collected on the basis of total amount of duties which were paid in terms of the said notification.

9. On the other hand, learned Advocates appearing for the respondents submitted that the levy and payment of excise duty in terms of the said notification does not include collection of duty within the meaning of the said expression under the statutory provision in relation to the payment of excise duty. According to the learned Advocates, deposit of the amount in PLA account in terms of the said notification would not amount to collection of the duty and, therefore, there was no question of levy of education cess in relation to such amount of duty of excise which is never collected within the meaning of said expression under Section 93 of the Finance Act. Drawing to our attention to the Finance Act, it was contended that levy of cess is essentially with reference to the excise duty levied and collected. In the absence of collection of duty according to the respondents there was no occasion for the department to levy the cess and whatever amount on assumption that such cess can be levied was collected by the respondents is obviously refundable alongwith the excise duty which was paid under the said notification. Attention was also drawn to the decision in the matter of Bharat Box Factory Ltd., vs. CCE, Jammu reported in 2007 (214) ELT 534 (Tri.- Del). Referring to the notification, it was sought to be contended that the levy of duty under the said notification was not with intention of collecting the same in its strict sense, but it was with the intention to return the same to the assessees and, therefore, whatever amount that was received by the Department under the said notification ought to have been repaid to the assessees. In this regard, attention was drawn to Circular No. 345/2/2004-TRU (Pt.), dated 10.08.2004 and particularly to answer to Question No. 2 thereunder while contending that since no duty is actually refundable, there was no occasion for levy of cess and even assuming that the duty was refundable it was not actually collected and, therefore, the requirements for levy of cess in terms of Section 93 were not satisfied. Referring to the decision of Honble Rajasthan High Court in Banswara Syntex Limited vs. Union of India reported in 2007 (216) ELT 16 (Raj.), it was contended that the cess, in fact, is in the nature of surcharge and once it is clear that there is no collection of the parent levy, obviously there would be no occasion for surcharge. In that regard, reference was made to paras 15, 16 and 19 of the judgement in Banswara Syntex Limited case. In that regard attention was also drawn to para 35 of the decision of the Apex Court in the matter of R.S. Joshi, Sales Tax Officer, Gujarat and Ors. vs. Ajit Mills Limited and Anr. reported in AIR 1977 SC 2279, as also Circular No. 682/73/2002-CX dated 19.12.2002. It was sought to be contended that the notification was basically designed to give certain relief from the payment of duties by the manufacturers establishing their units in the state of Jammu & Kashmir. Being so, the intention of legislature being to grant exemption to manufacturers from the subjected area from payment of duties and the levy of cess being directly related to the levy and collection of excise duty, in the absence of actual collection of excise duty, there was no obligation for the assessees to pay the education cess. It was sought to be contended that even the authorities have clearly understood the notification to have been designed to give full exemption to the assessees from the payment of duties and, therefore, objection by the Department for refund of the education cess is unwarranted.