2015 (10) TMI 1122 - AT - Central Excise

Duty demand - DTA Clearances - Refund claim - Education Cess and SHE Cess - Held that - To regularize the payment under their respective accounting head, the Appellant should claim the refund of excess paid Education Cess and SHE cess and the Appellant should deposit the same under the accounting had of Basic Excise Duty. The decision relied upon by the learned Advocate in the case of M/s Pepsico India Holding Pvt. Ltd (2010 (4) TMI 521 - CESTAT NEW DELHI) is for transfer of amount in PLA from BED to SED. Single Member Bench decision of this Tribunal relied by learned Advocate in the case of M/s Gaula Closure (India) Ltd (2008 (5) TMI 50 - CESTAT, AHMEDABAD) had not considered the Board circular. The learned Advocate submits that they have filed refund claim of excess amount paid under Education Cess and SHE Cess. We direct the Adjudicating authority to consider the issue in accordance with law - No reason to interfere the order of Commissioner (Appeals) - Decided against assessee.

Summary

Issues:
Transfer of amount from Education Cess and SHE Cess to BED, applicability of CBEC Circular No. 7/93-CX.6, utilization of credit balance of SED in PLA, interpretation of Board Circular dt. 23.04.1993, refund claim of excess paid Education Cess and SHE Cess.

Analysis:
The case involved the Appellant, a 100% EOU engaged in manufacturing S.O. Dyes and Dye Intermediates, who deposited a sum under Education Cess and Secondary & Higher Cess head and utilized it under Basic Excise Duty during a specific period. The Adjudicating authority confirmed duty demand, interest, and imposed a penalty. The Commissioner (Appeals) allowed the appeal, directing the Appellant to file a refund claim for the amount paid under Education Cess and SHE Cess, to be deposited under the accounting head of BED.

The Appellant contended that the Department should have refunded the excess amount paid based on CBEC Circular No. 7/93-CX.6 and cited relevant Tribunal decisions supporting their argument. On the contrary, the Authorised Representative for the Revenue argued against the transfer, citing the absence of provisions or circulars for such transfers and distinguishing the Tribunal decisions mentioned by the Appellant.

The Tribunal analyzed the submissions and found merit in the Revenue's argument. They clarified that the Board Circular dt. 23.04.1993 pertained to the transfer of credit balance between minor heads, specifically addressing the utilization of credit balance of SED in PLA post its abolition. The Tribunal emphasized the procedural requirements outlined in the Circular for transferring credit balances between heads.

Ultimately, the Tribunal agreed with the Commissioner (Appeals) that the Appellant should claim a refund for the excess paid Education Cess and SHE Cess and deposit it under the Basic Excise Duty accounting head. They differentiated the Tribunal decisions cited by the Appellant, noting that they did not consider the Board circular. The Tribunal directed the Adjudicating authority to address the refund claim in compliance with the law, leading to the rejection of the Appellant's appeal.

In conclusion, the Tribunal upheld the Commissioner (Appeals) order, rejecting the Appellant's appeal while providing detailed reasoning based on the interpretation of relevant circulars and legal provisions.