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TMI Blog2018 (8) TMI 1379X X X X Extracts X X X X X X X X Extracts X X X X ..... where it was held that The appellants were entitled to refund of Education Cess and Higher Education Cess which was paid along with excise duty once the excise duty itself was exempted from levy. Refund allowed - appeal allowed - decided in favor of appellant. - Appeal No. E/771 to 773/2010 - A/86908-86910/2018 - Dated:- 14-6-2018 - DR. D.M. MISRA, MEMBER (JUDICIAL) And MR. S. SRIVASTAVA, MEMBER (TECHNICAL) Shri B.B. Mohite, Advocate for Appellant Shri A.B. Kulgod, AC (AR) for Respondent ORDER Per: Dr. D.M. Misra Heard both sides. 2. These three appeals are filed against Order-in-Appeal No. SB/21-23/LTU/MUM/2010 dated 29.1.2010 passed by the Commissioner of Central Excise (Appeals), LTU, Mumbai. 2. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation Cess is to be levied @ 2% and calculated on the aggregate of all duties of excise which are levied and collected by the Central Government under the provisions of Central Excise Act, 1944 or under any other law for the time being in force. Sub-section (3) of Section 93 provides that the provisions of the Central Excise Act, 1944 and the rules made thereunder, including those related to refunds and duties, etc., shall as far as may be applied in relation to levy and collection of Education Cess on excisable goods. A conjoint reading of these provisions would amply demonstrate that Education Cess as a surcharge, is levied @ 2% on the duties of excise which are payable under the Act. It can, therefore, be clearly inferred that when ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of charging surcharge to be collected for the purpose of Union. But, it was made clear that in respect of all the three taxes, the surcharge collected along with the tax will bear the same character of respective taxes to which surcharge was appended and was to be governed by the respective enactments under which Education Cess in the form of surcharge is levied collected. Apparently, when at the time of collection, surcharge has taken 16. the character of parent levy, whatever may be the object behind it, it becomes subject to the provision relating to the Excise Duty applicable to it in the manner of collecting the same obligation of the tax payer in respect of its discharge as well as exemption concession by way of rebate attached ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, issue pertained to valuation of cess which was levied @ 1/8 per cent of ad valorem value of the Central Excise duty. The Court held that the calculation of 1/8 per cent ad valorem of the motor vehicle for the purposes of the levy and collection of the automobile cess must be made that was being calculated since automobile cess was to be levied and calculated as if it was excise duty. As a fortiorari, the Education Cess and Higher Education Cess levied @ 2% of the excise duty would partake the character of excise duty itself. Insofar as judgment of Calcutta High Court in Biswanath Hosiery Mills Ltd. case is concerned, we find that the same would have no bearing in the present case. In the said case, cess was payable under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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