2010 (1) TMI 461 - AT - Central Excise

Refund- Area based exemption - the issue involved relates to the claim of the assessee for refund of the amount which was stated as Additional Excise Duty National Calamity Contingency Duty and Education Cess by the assessee within the Territory of Jammu & Kashmir. The claim is based under the Notification No. 56/2002-C.E. dated 14th Nov. 2002. Held that - para 2 of Notification disclosed that it refer to payment as excise duty and not relates to any other termed as excise duty by virtue of statutory provision other than in Excise Act itself. Matter covered in favour of revenue by tribunal decision dated 12.08.2009. circular cannot overrid decision of Tribunal thus the appeal liable to be dismissed.

Summary

Issues:
Claim of refund for Additional Excise Duty, National Calamity Contingency Duty, and Education Cess within the Territory of Jammu & Kashmir under Notification No. 56/2002-C.E.

Analysis:
The issue in this case revolves around the claim of the assessee for a refund of the amount paid as Additional Excise Duty, National Calamity Contingency Duty, and Education Cess within the Territory of Jammu & Kashmir under Notification No. 56/2002-C.E. The appellant, relying on a decision of the Rajasthan High Court and a circular, argued that the duty paid is liable to be refunded. However, the authorities below had refused the refund. The Departmental Representative contended that the Additional Excise Duty and NCCD do not form part of the excise duty under the Excise Act when read with the said notification. The Tribunal had previously held that any CESS or duty payable under another statute, defined as excise duty, would not form part of the excise duty under the Excise Act, as per the relevant terms in the notification. Therefore, the issue raised by the appellant had already been concluded by a previous decision of the Tribunal.

The notification dated 19th December, 2002, exempted a portion of the excise duty paid by manufacturers in cash in the State of Jammu & Kashmir. The notification specified a mechanism for refunding the cash paid as duty. The Tribunal emphasized that the notification referred to the payment as excise duty and did not extend to payments termed as excise duty by other statutory provisions. The Tribunal also highlighted that a circular cannot override its decisions, especially when the issue had been thoroughly considered in light of relevant decisions of the Apex Court. The Tribunal dismissed the relevance of the decision of the Rajasthan High Court as it did not address the specific issues considered in the Tribunal's previous order. Therefore, based on the reasons stated in the earlier decision, the Tribunal concluded that the issues raised by the appellants were already settled, leading to the dismissal of the appeals.

In conclusion, the Tribunal upheld the decision to dismiss the appeals, as the issues raised regarding the refund of Additional Excise Duty, National Calamity Contingency Duty, and Education Cess under Notification No. 56/2002-C.E. within the Territory of Jammu & Kashmir had already been conclusively addressed in a previous order. The Tribunal reiterated that payments defined as excise duty under other statutes do not fall under excise duty as per the Excise Act and relevant notifications.