2016 (10) TMI 301 - AT - Central Excise

Recovery of amount taken as credit of Education Cess and Secondary and Higher Secondary Education Cess - self credit taken on the basis of Exemption Notification No. 56/2002-CE, dt. 14.11.2002 - claim for exemption in respect of education cess and S&H cess rejected and order for recovery passed by Assistant Commissioner, which was paid by the appellant within five days of the order - subsequent SCN issued for demand of the same - is the subsequent SCN issued for demand of Education Cess and S&H Cess tenable? - Held that - recovery of the same amount along with interest would amount to double jeopardy. The same amount which had been already been paid by the appellant in pursuance of Assistant Commissioner s order, cannot be demanded again by initiating fresh proceedings - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Availing exemption under Notification No. 56/2002-CE for duty payable on goods cleared.
2. Rejection of exemption claim for education cess and S&H Cess.
3. Show cause notice issued for demand of education cess and S&H Cess.
4. Double jeopardy claim due to re-demand of already paid amount.

Analysis:

1. The appellant had a manufacturing unit availing Exemption Notification No. 56/2002-CE for duty payable on cleared goods. The duty payable through PLA was refundable, and the appellant took self-credit for education cess and S&H Cess paid through PLA. However, the Assistant Commissioner rejected the claim for exemption on education cess and S&H Cess.

2. Subsequently, a show cause notice was issued for the demand of education cess and S&H Cess. The Assistant Commissioner dropped the proceedings, but an appeal filed by the appellant was allowed by the Ld. Commissioner (Appeals), leading to the current appeal.

3. During the hearing, the appellant's consultant argued that the amount in question had already been paid after the Assistant Commissioner's order, and initiating fresh proceedings for the same amount would amount to double jeopardy. The appellant contended that the show cause notice for recovery of the same amount, along with interest, was unjustified.

4. The appellate tribunal considered both sides' submissions and reviewed the records. It was acknowledged that if the appellant's claim of having already paid the amount in accordance with the Assistant Commissioner's order was accurate, issuing a show cause notice for the same amount again would indeed constitute double jeopardy. Therefore, the tribunal concluded that the impugned order was unsustainable, setting it aside and allowing the appeals.

In conclusion, the tribunal found in favor of the appellant, setting aside the impugned order due to the unjust re-demand of an amount already paid, which would have amounted to double jeopardy.