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TMI Blog2013 (12) TMI 695X X X X Extracts X X X X X X X X Extracts X X X X ..... er excise duties exempt has no meaning. It is relevant that the notification was issued in the year 2002. At that time excise duty under Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 was leviable. This levy was 15% of basic excise duty. But that levy was specifically exempted in the notification and not by implication. The power to grant exemption is to be exercised by the government and not through judicial interpretation or by implication or by reading words into the notification which words are not there. - Refund of education cess and higher education cess denied - Decided against the assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner of Central Excise, as the case may be, shall refund the amount on provisional basis by the 15th day of the next month to the month under consideration, and thereafter may adjust the amount of refund by such amount as may be necessary in the subsequent refunds admissible to the manufacturer." 3. It may be noted that this exemption is granted though a mechanism under which a manufacturer pays the specified excise duties for a month by 7th day of the next month firstly out of Cenvat credit to be taken on raw materials used in manufacture of final products and pays the balance amount through cash or PLA. By 15th of that month the excise officers are required to refund to the manufacturer the amount paid through cash or PLA. 4. It may be seen from the opening paragraph of the notification that this exemption notification issued in the year 2004 provides exemption,- "from so much of the duty of excise or additional duty of excise, as the case may be, leviable thereon under any of the said Acts as is equivalent to the amount of duty paid by the manufacturer of goods, other than the amount of duty paid by utilization of CENVAT credit under the CENVAT Credit Rules, 2002." 5. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs. UOI-2009 (233) ELT 44 (Guj). This case deals with the same situation as in the case of Baswara Syntex Ltd. The court held that "the definition of 'duty' would include Education Cess on excisable goods" and therefore the assessee is entitled to refund of education cess also. 8.3 State of Karnataka Vs. Sunagar Bros.-1993 (65) ELT 471 (SC) The question for consideration in this appeal is whether the mandate under Section 20(3) of the Karnataka Sales Tax Act, 1957 (the Act), to pay the undisputed tax before the appeal is entertained, is also applicable to the additional tax payable under Section 6B of the Act. In other words whether it is obligatory under the Act to deposit the tax and the additional tax before the appeal is entertained. The Hon. Court held as under: "The fact that the quantum of the additional tax is determined with reference to the sales tax/purchase tax impost would not alter its character. The additional tax is nothing but an enhancement in the rate of the sales tax, purchase tax under the Act. As soon as the assessing authority determines the levy of sales tax/purchase tax the additional tax under Section 6B becomes part of the assessment order. Similarly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case Jindal drugs Ltd and the decision dated 14-09-2012 in the case of Bharat Box factory referred to by the Ld A. R. for Revenue and decided against the appellants. 14. The decisions in the case of Baswara Syntex Ltd (supra) and Vipor Chemicals Pvt. Ltd (Supra) are with reference to machinery provisions for grant of rebate on export. Neither Rule 18 nor the notification 40/2001-CE(NT) nor Notf 19/2004-CE(NT) specifies the type of excise duty to which the rule or notification will apply whereas Notification 56/2002-CE specifies the types of Excise duties to which the exemption applies. In those cases the dispute was about a Non-Tariff Notification which ipso facto implies that it was about a procedural matter. There cannot be a dispute that the procedure for collection and refund of excise duty will apply for collection of education cess and higher education cess also. But the issue to be decided in this case is whether the exemption which is a substantive benefit to be granted in exercise of powers given under the Act can be extended by implication. Just because the exemption is granted by refunding the part of the duty paid in cash, there is no reason to treat this as a case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the order and reason recorded in the case of Jindal Drugs Ltd. which is reproduced below :- "6. We find that the issue involved in this case stands decided against the appellant by a detailed judgment of the Tribunal in the case of CCE, Jammu Vs. Jindal Drugs Ltd. (supra), wherein the Tribunal relying upon the Apex Court's judgment in the case of Union of India Vs. Modi Rubber Ltd. reported in 1986 (25) ELT 849 (SC) had held that Notification No.56/2002-CE is not applicable to education cess levied under Section 91 read with Section 93 of Finance Act, 2004. Though the Tribunal in the case of Bharat Box Factory Ltd. Vs. CCE, Jammu (supra) and Cyrus Surfactants Pvt. Ltd. Vs. CCE, Jammu (supra) had taken a contrary view, we find that in these judgments of the Tribunal, the Apex Court's judgment in the case of Union of India Vs. Modi Rubber Ltd. (supra) has not been considered. In the case of Union of India Vs. Modi Rubber Ltd. (supra), the Apex Court had held that the words "duty of excise" in the Notification No.123/74-CE dated 1.8.74 and 27/81-CE dated 1.3.81 issued under Rule 8(1) of Central Excise Rules, 1944 (corresponding to Section 5A of Central Excise Act, 1944) would no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal in other appeals. 21. Learned Member Technical has relied upon the Tribunal's order in the case of Jindal Drugs, which has, after considering the issue has held that there is no requirement of reference of the matter to Larger Bench. Accordingly learned Member Technical has held that the matter need not be referred to Larger Bench and has dismissed the appeals. 22. With respect to learned Member Technical, I am not in agreement with the conclusion arrived at by him. The two decisions of the Tribunal in the case of Cyrus Surfactants Pvt. Ltd and in the case of Bharat Box Factory Ltd. are the earlier decisions which do not stand followed in subsequent decision of Jindal Drugs Ltd. The question which arises is that when the Tribunal in the case of Jindal Drugs proposed to take a view different than the one taken in the earlier decisions, whether the matter should have been referred to the Larger Bench or not. 23. The learned adv. for the appellant has relied upon the observations made by the Hon'ble Supreme Court in the case of M/s Gammon India Ltd Vs. CCE (sic), Mumbai 2011 (269) E.L.T. 289 (S.C) . The said decision has not got the attention of my learned brother Member Tech ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principle which every presiding officer of a judicial forum ought to know, for consistency in interpretation of law alone can lead to public confidence in our judicial system. This Court has laid down time and again that precedent law must be followed by all concerned; deviation from the same should be only on a procedure known to law. A subordinate court is bound by the enunciation of law made by the superior courts. A Coordinate Bench of a Court cannot pronounce judgment contrary to declaration of law made by another Bench. It can only refer it to a Larger Bench if it disagrees with the earlier pronouncement." We respectfully concur with these observations and are confident that all the Courts and various Tribunals in the country shall follow these salutary observations in letter and spirit." 24. On going through the observation of the Hon'ble Supreme Court I find that serious concern stands made by their Lordships about taking a different view then the one taken by the coordinate Bench. If the subsequent bench of the Tribunal was not in agreement with the views expressed in the earlier order, the matter should have been referred to larger bench for resolving the issue. After h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Issue in brief is whether duty of excise referred in Notification No.56/2002 dated 14.11.2002 includes Education Cess of 2% levied under Section 91 of the Finance Act, 2004 @ 2% of aggregate of all duties of excise and Higher Education Cess leviable under Section 136 of the Finance Act, 2007 at the rate of 1% of aggregate of all duties of excise. 29. Ld. Advocate Shri Mayank Garg appearing for the appellants submits that Education Cess and Higher Education Cess are levied and collected by the department as duty of excise. As clear from provision of Finance Act, 2004 and Finance Act, 2007, these are collected as a percentage of all duties of excise. He submits that when any exemption notification is issued exempting other excise duties, these cesses which are collected as appendage to these duties cannot be levied. In support of his contention that 'duty of excise' appearing in Notification No.56/2002 includes Education Cess and Higher Education Cess he relied on the following decisions :- 1. Banswara Syntex Ltd. Vs. UOI - 2007 (216) ELT 16 (Raj.) 2. State of Karnataka Vs. Sunagar Bros. -1993 (65) ELT 471 (SC). 3. Cyrus Surfactants Pvt. Ltd. Vs. CCE - 2007 (215) ELT 55 (Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese decisions in para 25 of the order and on noting the decision of Apex Court in case of Modi Rubber Ltd. - 1986 (25) ELT 849 (SC) has held that exemption or refund is not admissible in respect of Education Cess and High Education Cess under the Notification. It was for the Bench in Jindal Drugs to consider whether matters needs to be referred to Larger Bench in view of earlier decisions of Tribunal in assessee's favour. But Bench did not do so presumably as it relied on decision of Supreme Court in case of Modi Rubber (supra). 34. I also find that issue of referring the matter to Larger Bench came up before this Tribunal in case of Tawi Chemical Industries Ltd (supra). The Bench presided over by the President relied on the decision of Tribunal in Jindal Drug Ltd. (supra) and has held as under :- 6. We find that the issue involved in this case stands decided against the appellant by a detailed judgment of the Tribunal in the case of CCE, Jammu v. Jindal Drugs Ltd. (supra), wherein the Tribunal relying upon the Apex Court's judgment in the case of Union of India v. Modi Rubber Ltd. reported in 1986 (25) E.L.T. 849 (S.C.) had held that Notification No.56/2002-C.E. is not applicab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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