2023 (6) TMI 1055

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..... VISTA LIMITED VERSUS COMMISSIONER (APPEALS) , CGST, CENTRAL EXCISE, RAIPUR [ 2022 (3) TMI 1254 - CESTAT NEW DELHI ]. He drew attention to para 4 5 of the decision of co-ordinate Bench of Ahmedabad to emphasize the refund cannot be denied because of particular situation as brought out in above decision due to which the assessee was unable to avail the higher education Cess on etc. This Court is of the view, the matter stands covered by the above decisions cited by the learned Advocate - the issue is no longer res integra, the appellants are entitled to cash refund. Appeal allowed.
HON'BLE MEMBER ( JUDICIAL ) , MR. SOMESH ARORA Shri Amal Dave , Advocate for the Appellant Shri. P Ganesan , Superintendent ( Authorized Representative .....

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..... eavily relied upon various High Court decisions according to which refund was allowed considering Rule 5 of Cenvat Credit Rules, 2004. It is not disputed that the appellant are not in a position to utilize Cenvat credit of Education Cess and Secondary and Higher Education Cess due to introduction of GST with effect from 01.07.2017. 5. As regards the admissibility of Cenvat credit of Education Cess and Secondary and Higher Education Cess, Rule 3 clearly provides the Cenvat credit to be allowed in respect of Education Cess and Secondary and Higher Education Cess for ease of reference, Rule 3 of Cenvat Credit Rules is reproduced below:- Rule 3. CENVAT credit. - (1) A manufacturer or producer of final products or a provider of taxable ser .....

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..... e Act, 2003 (32 of 2003); (ix) the service tax leviable under section 66 of the Finance Act; (x) the Education Cess on taxable services leviable under section 91 read with section 95 of the Finance (No.2) Act, 2004 (23 of 2004); and (xa) the Secondary and Higher Education Cess on taxable services leviable under section 136 read with section 140 of the Finance Act, 2007 (22 of 2007); and (xi) the additional duty of excise leviable under section 85 of Finance Act, 2005 (18 of 2005 ) From the above Rule, under clause (vi) and (via), the credit of Education Cess and Secondary and Higher Education Cess is clearly allowed. Therefore, the appellant is legally entitled for Cenvat of Education Cess and 4 Excise Appeal Nos. 10345 of 20 .....

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