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TMI Blog2020 (10) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... the payment of education cess secondary and higher education cess. The said question was decided by the Supreme Court in its pronouncement in SRD Nutrients Pvt. Ltd. Vs. Commissioner of Central Excise, Guwahati [ 2017 (11) TMI 655 - SUPREME COURT ] wherein in paragraph 27 of the said judgment it was held that the appellants therein were entitled to refund of education cess and higher education cess which was paid along with the excise duty once the excise duty itself was exempted from levy. The demand cum show-cause notice dated 06.08.2020 is assailed in this writ petition on the ground that the condition precedent to invoke the power under section 11(A-1) is that the refund made must be erroneous - the condition precedent of section 11(A- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellants therein were entitled to refund of education cess and higher education cess which was paid along with the excise duty once the excise duty itself was exempted from levy. In the aforesaid circumstances, by the order dated 31.01.2019 passed by the Assistant Commissioner, Guwahati, Division 1, certain amounts were sanctioned for refunded to the petitioner and accordingly the refunds were given effect. Subsequent thereto, the Supreme Court in its pronouncement in Unicorn Industries vs. Union of India and others reported in 2019 SCC Online SC 1567 in paragraph 49 had held as under: 49. The reason employed in SRD Nutrients Private Limited (supra) that there was nil excise duty, as such, additional duty cannot be charged, is also equally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s secondary and higher education cess given to them has now become erroneous refunds and therefore, a recovery be made under section11(A-1) of the Central Excise Act 1944. The demand cum show-cause notice dated 06.08.2020 is assailed in this writ petition on the ground that the condition precedent to invoke the power under section 11(A-1) is that the refund made must be erroneous. It is contended when the refund was given effect during the period prior to the judgment of the Supreme Court in Unicorn Industries (supra), at that point of time the proposition laid down in SRD Nutrients Private Limited (supra) was in force which had decided in favour of such refunds. Accordingly, it is contended that when the refund was made the law in force wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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