2018 (4) TMI 1091 - AT - Central Excise

Refund of education/ higher education cess - Revenue is of the view that education cess/ higher education cess is not duty, therefore, in terms of N/N. 56/2002-CE dated 14.11.2002, they are not entitled to claim refund of self credit of the same - Held that - the issue of refund of education cess/ higher education cess has been settled by the Hon ble Apex Court in the case of M/s. SRD Nutrients Pvt. Limited vs. CCE, Guwahati 2017 (11) TMI 655 - SUPREME COURT OF INDIA wherein it has been held that education cess/ higher education cess arising on account of duty payable by the appellant - refund allowed. Refund of excess duty paid - Held that - the excess amount paid by the appellant is not towards duty, in that circumstance, refund claim or self credit of said amount cannot be demanded in terms of section 11A of the Central Excise Act, 1944 - refund cannot be rejected. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Denial of refund of education/higher education cess.
2. Allegation of paying excess duty and denial of refund.

Analysis:
1. The appellant appealed against orders denying their claim for refund of education/higher education cess and excess duty paid. The appellant, located in Jammu & Kashmir, clears goods after exhausting Cenvat credit and paying duty through PLA. The Revenue contended that education cess/higher education cess is not duty, hence, the appellant cannot claim refund under Notification No. 56/2002-CE. Additionally, the appellant was accused of clearing goods to their sister unit without paying the required duty under Rule 8 of Central Excise Valuation Rules, 2000. The adjudication rejected refund claims, leading to the appeal.

2. The Tribunal referred to the decision in M/s. SRD Nutrients Pvt. Limited vs. CCE, Guwahati, where it was established that education cess/higher education cess arises on account of duty payable by the appellant. Consequently, the Tribunal held that the appellant is entitled to claim refund/self-credit of the cess. Regarding the allegation of excess duty payment, the Tribunal noted that if the appellant overpaid due to a miscalculation, it constitutes a deposit, not duty. As per Section 11A of the Central Excise Act, 1944, which applies to duty short paid, not paid, or erroneously refunded, the excess amount paid by the appellant does not fall under this category. Therefore, the appellant is entitled to the refund/self-credit of the excess amount paid.

3. In conclusion, the Tribunal set aside the impugned orders, allowing the appeals with consequential relief. The judgment clarified the entitlement of the appellant to claim refund/self-credit of education cess/higher education cess and the excess duty paid, based on the specific legal provisions and precedents cited during the proceedings.