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TMI Blog2017 (3) TMI 1411X X X X Extracts X X X X X X X X Extracts X X X X ..... of Education Cess and SHE Cess - no error has been committed by the learned Tribunal while passing the impugned order - appeal dismissed - decided against appellant-assessee. - Tax Appeal No. 703 of 2016 - - - Dated:- 22-2-2017 - M. R. Shah And B. N. Karia, JJ. Anandodaya S Mishra, Advocate for the Appellant Jaimin A Gandhi, Advocate for the Opponent JUDGMENT ( Per : Honourable Mr. Justice M. R. Shah ) 1.0. Feeling aggrieved and dissatisfied with the impugned order passed by the learned Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as the CESTAT ) dated 08.04.2015 passed in Appeal No. E/10150/2015 being Order No. A/10308/2015, by which, the learned CESTAT has dismissed the said appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Duty i.e. Cenvat Duty amounting to ₹ 12,21,639/under the provision of Section 11A of the Central Excise Act and also ordered for recovery of interest at appropriate rate under the provisions of Section 11AB of the Central Excise Act charged on the aforesaid amount of Basic Excise Duty of ₹ 12,21,639/. That the order passed by the adjudicating authority was carried in appeal before the Commissioner (Appeals) and by the order in appeal dated 11.07.2014 in the matter of Order In Original dated 13.01.2010, the Commissioner (Appeals) inter alia observed that adjudicating authority has held that the appellant had made short payment of ₹ 12,21,639/in payment under Basic Excise duty and held that appellant should deposit the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has dismissed the said appeal confirming the order passed by the learned Commissioner (Appeals), by which, learned Commissioner (Appeals) as well as learned Tribunal did not accept the request on behalf of the appellant to adjust the amount of education cess and SHE cess which was paid by the assessee in excess, against the dues of the basic excise duty with the aforesaid proposed question of law. 3.0. Shri Mishra, learned advocate for the appellant has vehemently submitted that the learned Tribunal has materially erred in not regularizing the payment of ₹ 12,21,639/paid in excess by the assessee and mistakenly paid under the accounting head of Education Cess and SHE Cess. It is submitted that therefore, while discharging total exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 11AB of the Central Excise Act may be involved then there is a loss to the Revenue. It is submitted that in the present case ₹ 12,21,639/was already deposited by the appellant may be under the different head, however, subsequently it was found that the amount of ₹ 12,21,639/was paid in excess as there is no law to pay Education Cess and SHE Cess, Section 11AB of the Act shall not be applicable. Making above submissions and relying upon decision of the Division Bench of this Court in the case of M/s. Falah Steel vs. Union of India rendered in Special Civil Application No. 7051 of 2015 2016 96) TMI 924 as well as in the case of Devang Paper Mills Pvt Ltd vs. Union of India reported in 2016(41) STR 418 (Guj) and relyi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss the present appeal. 5.0. Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that as per the OIO a sum of ₹ 12,21,639/was due and payable by the appellant towards BED. It is also not in dispute that adjudicating authority framed the demand of duty along with interest and penalty. Order In Original has been confirmed by the learned Commissioner (Appeals), however while partly allowing the appeal, learned Commissioner (Appeals) has observed that the appellant may file the refund claim of ₹ 12,21,639/paid under the head of Eduction Cess and SHE Cess and they should also deposit the same under the accounting head of BED. The order of learned Commissioner (Appeals) has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue and payable by the appellant under the BED. At the same time, the appellant shall also be entitled to interest on the refund on the amount of ₹ 12,21,639/paid under the head of Education Cess and SHE Cess. 6.0. Now, so far as reliance placed upon the circular no.7/93CX, 6 dated 23.4.1993 of the CBEC is concerned, the same shall not be applicable to the facts of the case on hand. It is with respect to transfer of credit balance lying in personal ledger account under one minor head to another minor head. 7.0. Reliance placed upon the decision of the Division Bench of this Court in the case of M/s. Falah Steel (supra), relied upon by the learned advocate for the appellant is concerned, the same also shall not be applicable to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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