2021 (2) TMI 1123 - HC - Central Excise

Refund of Education Cess and Secondary Higher Secondary Education Cess - benefit under N/N. 39/2001-CE dated 31.7.2001 availed - period from January-2007 to May-2007 - HELD THAT - The judicial discipline also would require to give effect to the order of the higher appellate authorities and not to once again initiate the actions of recovering the very refund claim, which has been given to the petitioner after a long drawn battle. Issue Notice for final disposal, returnable on 8.3.2021. Interim relief in terms of paragraph 18.B. is granted, till the returnable date. Learned Central Government Standing Counsel, Mr.Parth Divyeshvar waives service of Notice for and on behalf of the respondent No.1.

Summary

Issues:
Challenge to show cause notice issued without authority of law and in disregard to binding precedents.

Analysis:
The petitioner, a company manufacturing various goods, had availed exemption under Notification No.39/2001-CE during the earthquake in Kutch in 2001. A refund claim for Education Cess and Secondary & Higher Secondary Education Cess was partly sanctioned but later rejected. The challenge went through various stages, with the Central Excise & Service Tax Appellate Tribunal eventually allowing the appeal with consequential relief. The Adjudicating Authority, however, did not allow a refund claim concerning Education Cess and Secondary & Higher Secondary Education Cess, citing that the notification did not cover these cesses. The Commissioner (Appeals) later allowed the claim, which was accepted by the department. The petitioner then applied for a refund, which was granted and paid. Subsequently, a show cause notice was issued to recover the refunded amount, claiming that the exemption under the notification did not cover Education Cess and Secondary & Higher Secondary Education Cess.

The petitioner contends that the show cause notice, issued after previous orders had attained finality, lacks jurisdiction. The petitioner argues that initiating recovery proceedings for a refund claim already settled goes against judicial discipline and the orders of higher appellate authorities. The petitioner seeks relief from the court to quash the show cause notice and restrain further proceedings. The advocate for the petitioner highlighted relevant legal precedents to support the case, emphasizing the importance of upholding decisions of higher appellate authorities.

The court, after hearing arguments from the petitioner's advocate, granted interim relief in favor of the petitioner until a final disposal on 8.3.2021. The Central Government Standing Counsel waived service of notice on behalf of the respondent. The petitioner's advocate raised concerns about the delayed receipt of a notice for a virtual personal hearing, indicating potential procedural irregularities in the case.