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TMI Blog2019 (12) TMI 1059X X X X Extracts X X X X X X X X Extracts X X X X ..... vice, which is exempted without payment of service tax shall be allowed the refund of Cenvat Credit as per the prescribed formula. HELD THAT:- The same situation has come up before Hon ble Supreme Court in case of M/S. SRD NUTRIENTS PRIVATE LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE GUWAHATI [2017 (11) TMI 655 - SUPREME COURT] wherein the refund of not utilised credit was permitted to be refunded and Hon ble Supreme Court held that the EC and HEC is part of the excise duty, and therefore, the refund can be granted to him under the provisions of Section 11B of the Central Excise Act. The appellant is entitled for the refund of unutilised credit pertaining to education cess and higher education cess - appeal allowed - decided in favo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Credit of education and higher education cess lying in balance in credit again which were availed by them in respect of input, capital goods and input services used in the manufacture of final product. The refund claim arise on account of Notification No. 15/2015-CE dated 01.03.2015, which exempts all goods falling within the first schedule of Central Excise Tariff Act 1985 leviable thereon under the provisions of Section 138 of the Finance Act. 4. The refund claim was filed under the provisions of Rule 5 of Cenvat Credit Rules, 2004 (for short the Credit Rules) as there was no provision of their utilisation after the issuance of the aforestated notification. Learned Adjudicating Authority rejected the refund claim on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anted to him under the provisions of Section 11B of the Central Excise Act. It is, therefore, submitted that learned Commissioner committed error in granting the refund. 7. Learned AR, however, supported the impugned order on the ground contained therein. 8. I have considered the rival submission and also perused the case records. 9. This is the issue involve in the present appeal is refund of the credit which arouse on the ground of Notification No. 15/2015-CE wherein the education cess and higher education cess was merged with the excise duty, on account of which there is no way by which the appellant could have utilise this amount for the discharge of the excise duty in future. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 there is no excise duty payable, as it is exempted, there would not be any Education Cess as well, inasmuch as Education Cess @ 2% is to be calculated on the aggregate of duties of excise. There cannot be any surcharge when basic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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