2008 (1) TMI 743 - AT - Central Excise

Summary

Issues:
1. Stay application filed by Revenue for impugned order-in-appeal regarding refund of Education Cess.
2. Interpretation of Notification No. 56/2002 and Education Cess coverage.
3. Comparison with decision of Hon'ble High Court of Jammu and Kashmir.
4. Analysis of Section 93 of the Finance Act, 2004 regarding Education Cess as a duty of excise.
5. Decision on stay application based on Education Cess being a duty of excise.

Analysis:
1. The Revenue filed a stay application concerning the refund of Education Cess in the impugned order-in-appeal issued by the Commissioner (Appeals), Central Excise, Jalandhar. The main contention was whether Education Cess falls under Notification No. 56/2002, which did not explicitly mention Education Cess, leading to the Revenue's stance against granting a refund to the respondent.

2. The Revenue argued that Education Cess, introduced under the Finance Act 2004, was not covered by the aforementioned Notification, which specifically referred to certain acts excluding Education Cess. However, the Commissioner (Appeals) allowed the refund, considering Education Cess as part of the duty of excise, leading to a conflicting interpretation.

3. The Tribunal referenced a similar matter where the High Court of Jammu and Kashmir stayed a Tribunal order in favor of a different party, indicating the relevance of judicial decisions in similar cases.

4. Analyzing Section 93 of the Finance Act, 2004, the Tribunal found that Education Cess is considered a duty of excise, as it is levied on excisable goods in addition to other excise duties. This interpretation supported the respondents' case for a refund of Education Cess.

5. Considering Education Cess as a duty of excise based on the legislative provision, the Tribunal rejected the Revenue's application for a stay on the impugned order-in-appeal, indicating a strong case for the respondents due to the nature of Education Cess as outlined in the Finance Act, 2004. The decision was made in favor of the respondents, emphasizing the legal classification of Education Cess as a duty of excise.