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TMI Blog2018 (10) TMI 1064X X X X Extracts X X X X X X X X Extracts X X X X ..... ccumulated balance of Rs. 7,08,993/- comprising Education Cess of Rs. 4,74,725/- and Secondary and Higher Secondary Education Cess of Rs. 2,34,208/- in its CENVAT credit account. Consequent to the very rescission of the Education Cess and Secondary and Higher Secondary Education Cess, the concerning credit lying in the CENVAT credit, paid on the inputs, input services and capital goods became unutilisable or unrealisable for the assessee. Faced with such situation, the appellant filed a claim for refund of Rs. 7,08,933/- on 1.12.2015 under Section 11B of the Act of 1944. The adjudicating authority rejected appellant's refund claim vide order dated 02.03.2016, observing that the statutory provisions neither provide for sanction of refund in cash nor do they permit an assessee to utilize the accumulated CENVAT credit of Education Cess and Secondary & Higher Secondary Education Cess paid on inputs or input services against payment of excise duty etc. The appellant preferred a statutory appeal against the said order, which came to be rejected by the appellant authority vide its order dated 12.1.2018, more or less echoing the views of the adjudicating authority. It was additionally o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts Private Limited Vs. Commissioner of Central Excise, Guwahati. For the purpose of proper appreciation of the issue canvassed before us, it would be apt to consider the relevant statutory provisions of the Act and the Rules in vogue as on 28.02.2015. Hence, they are being re-produced hereinbelow :- "Section 11B. Claim for refund of duty and interest, if any, paid on such duty. - (1) Any person claiming refund of any duty of excise and interest, if any, paid on such duty may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence including the documents referred to in section 12A as the applicant may furnish to establish that the amount of duty of excise and interest, if any, paid on such duty in relation to which such refund is claimed was collected from, or paid by him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (23 of 2004); (iiia) the Secondary and Higher Education Cess on excisable goods leviable under section 136 read with section 138 of the Finance Act, 2007 (22 of 2007); ... ... ... ... ... ... ... ... ... Provided that the credit of the education cess on excisable goods and the education cess on taxable services can be utilized, either for payment of the education cess on excisable goods or for the payment of the education cess on taxable services: Provided further that the credit of the Secondary and Higher Education Cess on excisable goods and the Secondary and Higher Education Cess on taxable services can be utilized, either for payment of the Secondary and Higher Education Cess on excisable goods or for the payment of the Secondary and Higher Education Cess on taxable services." It is to be noted that on 1.3.2015, the Central Government issued the notification No.14/2015 and 15/2015 in exercise of powers available to it under Section 5 A (1) of the Act of 1944, exempting Education Cess and Higher Secondary Education Cess leviable on all goods. On 30.04.2015, the Central Government issued a notification No.12/2015 whereby the CENVAT Credit Rules 2004 were amended an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , paid by it, on the input or input services in payment of the duties or cess etc. in the manner provided and subject to restrictions imposed. A close and conjoint reading of the aforesaid provision makes it abundantly clear that an assessee is required to pay duty provided in the Schedule I and Schedule II to the Central Excise & Tariff Act and he can claim refund of such duty by making an application under Section 11 B of the Act of 1944, if the same has been erroneously paid or illegally recovered subject; of course, to the procedure and conditions contained therein. The Act of 1944 does not contain any provision for refund of the Excise Duty or other levies payable under the Act, until and unless the same are proved to have been erroneously paid or recovered with a further proof that its burden has not been passed on to the customers. Rule 8 (2) of the Central Excise Rules, 2002 authorises availment of credit of the duty of excise or other levies or service tax paid by the assessee on its inputs or capital goods in the manner provided under the CENVAT Credit Rules, 2004. While Rules of 2004 conveys a right upon an assessee to make payment of the duty, service tax, Education ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, the repository of rights of an assessee to avail credit of the duty or other sums paid on inputs does not entail or even envisage refund of such credit in cash and encashment cannot be claimed as a matter of course. It can also not be asserted that an assessee is entitled to or has an ingrained or vested right to claim refund of Education Cess and Secondary and Higher Secondary Education Cess or any other duty paid in accordance with the law dehors the CENVAT Credit Rules, 2004. Provisions as enacted in the form of Section 11 B of the Act of 1944 or other provisions are of little avail to the assessee, as they do not even provide for availment of credit of the duty, much less refund or its payment in cash. The judgment in case of SRD Nutrients Private Limited (supra) cited by learned counsel for the appellant - assessee has no bearing on the issue at hands, as the facts on record and question posed for consideration before us are entirely different from the facts and issues, which were involved in the case before Hon'ble the Supreme Court. The said judgment of Hon'ble the Apex Court simply lays down that Education Cess as well as Secondary and Higher Secondary Education Cess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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