9911796707
TMI Blog2017 (6) TMI 1093X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the impugned order dated 17.5.2010 passed by Commissioner (A) whereby the Commissioner (A) has set aside the Order-in-Original and allowed the appeal of the assessee with consequential relief of refund of Rs. 2,99,230/-. 2. Briefly the facts of the present case are that respondent-assessee filed refund application on 1.12.2008 for Rs. 4,14,122/- claimed to be the excess amount of education ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant to the Order-in-Appeal dated 26.11.2008, the then Assistant Commissioner of Customs, Customs Division, Bangalore rejected the claim vide OIO dated 7.7.2009 as not sustainable. Aggrieved by the OIO, the respondent filed an appeal before the Commissioner of Customs (A) who vide Order-in-Appeal dated 7.10.2009 set asidet he OIO dated 7.7.2009 and directed the lower authority to refund excess paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled an appeal before the Commissioner of Customs (Appeals). The Commissioner (A) vide Order-in-Appeal dated 17.5.2010 set aside the OIO dated 11.1.2010 with consequential relief. While passing the OIA, Commissioner (A) held that the importer has paid education cess thrice instead of twice as held the Commissioner (A) in the earlier orders and hence, they are eligible for refund. Aggrieved by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a levy on existing levies, existing levies cannot include cess - For this reason only, Sections 93 and 94 of Finance Act, 2004 and Sections 138 and 139 of Finance Act, 2007, the charging provisions of Education Cess, specifically provides that aggregate of duties of Excise or Customs on which cess is levied as surcharge does not include Education Cess - Hence, legislature did not intend to charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A) has held that assessee is not liable to pay Education Cess third time, the issue is squarely covered in favour of the assessee by Larger Bench decision of this Tribunal and by following the ratio of the said decision, I am of the view that there is no infirmity in the impugned order passed by the Commissioner (A) and therefore, I uphold the impugned order by dismissing the appeal of the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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