9911796707
TMI Blog2012 (9) TMI 707X X X X Extracts X X X X X X X X Extracts X X X X ..... Vide notification, under Section 91 and 93 of the Finance Act, 2004, education cess was levied as duty of excise, effected from 9th July 2004, as per the provisions of Clause 81, 83 and 84 of the Provisional Collection of Taxes Act, 1931. 4. The petitioner Company, exported Cotton Yarn on payment of duty and education cess, and claimed refund of excise duty and education cess, under the notification under the Finance Act, 2004. 5. The benefit of rebate of whole of the duty paid on all excisable goods, falling under the First Schedule to the Central Excise Tariff Act, exported to any country, was under notification, dated 26th June 2001. 6. This notification was adopted subsequently. The notification, imposing Central Excise and education cess with effect from 9th July 2004 was by way of partial modification, superseding the notification thus in force. 7. Thereafter, on 6th September 2004, the Central Government issued explanation to the notification No. 90/2004. 8. The explanation issued reads as under :- "Explanation I - "duty" for the purpose of this notification means duties of excise collected under the following enactments, namely : (a) th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and under Notification such duties can be rebated which have been mentioned in above said explanation of the Notification. The provisions of the said Notification regarding duties to be rebated are very clear and there is no ambiguity which requires any clarification. Similarly perusal of the Notification No. 19/2004-C.E.(N.T.), dated 6-9-2004, issued in exercise of the power conferred by Rule 18 of the Central Excise Rules, 2002 and in supersession of the Ministry of Finance Dept., of Revenue, Notification No. 40/2001-Cx.(N.T.), dated 26-6-2001, G.S.R. 469(E) dated 26th June 2001 also reveals that there is nothing in the Notification to show that the provisions of the Notification have been given retrospective effect. 6.5. In Mahar Dairies (supra), a Division Bench of the Apex Court observation :- "8. It is settled law that in order to claim benefit of a Notification a party must strictly comply with the terms of the notification. If on wording of the notification the benefit is not available then by stretching the words of the notification or by adding words to the Notification benefit cannot be conferred.....". A similar view has been express by a Division Bench of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel for the petitioner is that the judgments, relied upon by the revisional authority in the order, has no application to the facts of this case, as the petitioner had complied with the terms of notification, and the claim raised was not by stressing the word, as was case of Tata Iron & Steel Co. Ltd. v. State of Jharkhand and Others - (2005) 4 SCC 272. 18. The other judgment relied upon by the revisional authority also has no application to the facts of the present case, and it is not in dispute that the notification did cover, the case of the petitioner. The only question was as to whether the explanation given to the notification can be treated to be an independent notification or the notification already issued, and thus, operative from the date of original notification. 19. There is force in this petition. The custom authorities are not right in rejecting the claim of refund of education cess, by treating the explanatory notification to be prospective. The explanatory notifications are in the nature of judgment of courts, which only interpret the existing rights. The explanatory notification thus is to be treated as part and parcel of notification, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xemption concession by way of rebate attached with such levies. This aspect has been made clear by combined reading of sub-sections (1), (2) & (3) of Section 93. 18. The Explanation appended to Notification dated 26-6-2001 included within the ambit of Excise Duty any Special Excise Duty collected under any Finance Act when under Finance Act, 2004 it was ordained that Education Cess to be collected as surcharge on Excise Duty payable on excisable goods and shall be a Duty of Excise, it became a special Duty of Excise by way of Education Cess chargeable and collected under Finance Act, 2004 and fell within the ambit of Clause (3) of Explanation appended to Notification dated 26-6-2001. Consequently, rebate became available on collection of surcharge on Excise Duty under Finance Act, 2004 in terms of existing Notification dated 26-6-2001 immediately. Later Notification including the Education Cess in enumerative definition in the circumstances was only clarificatory and by way of abandoned caution, but not a new rebate in relation to Excise Duty or any part thereof as statutorily pronounced as well as specified Excise Duty levied and collected under the Finance Act. 19. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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