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TMI Blog2024 (6) TMI 1107X X X X Extracts X X X X X X X X Extracts X X X X ..... nth for payment of Central Excise duty and Cess. The balance amount of duty is paid in cash and on application of refund, the refund is granted for payment of Central Excise made in cash only. The above said issue is no more res-integra and stands finally decided by the decision of the Hon'ble Supreme Court in the case of M/S. UNICORN INDUSTRIES VERSUS UNION OF INDIA OTHERS [ 2019 (12) TMI 286 - SUPREME COURT] , wherein the Hon'ble Apex Court, after considering the provisions of Notification No. 71/2003-CE dated 09.09.2003 has held that a notification has to be issued for providing exemption under the said source of power and that in the absence of notification containing an exemption to such additional duties in the nature of education cess and secondary higher education cess, they cannot be said to have been exempted. Appropriation of an amount of Rs.4,61,315/- - HELD THAT:- The impugned order is not sustainable because appropriation cannot be done without issuing any show cause notice and without granting personal hearing to the appellant. This issue was considered by the various benches of this Tribunal in M/S DEPOSIT INSURANCE AND CREDIT GUARANTEE CORPORATION VERSUS CO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for refund. 4.3 He further submits that the Adjudicating Authority has partly allowed the refund claim made by the appellant but partly rejected the refund of Rs.62,842/- on account of education cess and secondary higher education cess paid through Cenvat Credit account of BED for the month of February 2011. 4.4 He also submits that the adjudicating authority without issuing any show cause notice and without granting personal hearing, has appropriated an amount of Rs.4,61,315/- from the sanctioned refund claim amount on the following grounds : (a) an amount of Rs.3,71,534 (i.e. Rs.3,61,990/- as BED, Rs.6,362/- as education cess and Rs.3,182/- as S H education cess) on account of irregular Cenvat credit availed by the appellant. (b) an amount of Rs.87,520/- as interest on account of irregular Cenvat credit availed by the appellant. (c) an amount of Rs.755/- as interest on delayed payment of duty by the appellant. (d) an amount of Rs.1,506/- (i.e. Rs.1005/- and Rs.501/-) on account of short payment of education cess and S H education cess on reversal of inputs cleared as such. 4.5 Further, he submits that the amount of Rs.3,71,534/- was reversed in the month of February 2011 itself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Notification No. 56/2002-CE cannot utilize BED Credit for payment of education cess and secondary higher education cess which are not exempted under the said notification; and now finally settled by the Hon ble Apex Court in case of M/s Unicorn Industries vs. Union of India (supra). 7. I note that the appellant is registered in the state of Jammu Kashmir and were availing benefit of area based exemption under Notification No. 56/2002-CE dated 14.11.2002. The said notification provides mechanism to give effect to aforesaid exemption by way of refund of duty paid through PLA. As per the procedure, the manufacturer avails Cenvat Credit of duty/cess paid by them on inputs and utilizes whole of the CENVAT credit available with them on last day of the month for payment of Central Excise duty and Cess. The balance amount of duty is paid in cash and on application of refund, the refund is granted for payment of Central Excise made in cash only. The refund is granted by way of cash or by way of self credit in PLA. The above said issue is no more res-integra and stands finally decided by the decision of the Hon'ble Supreme Court in the case of M/s Unicorn Industries vs. Union of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dditional excise duty and it would not mean that exemption notification dated 9-9-2003 covers them particularly when there is no reference to the notification issued under the Finance Act, 2001. There was no question of granting exemption related to cess was not in vogue at the relevant time imposed later on vide Section 91 of the Act of 2004 and Section 126 of the Act of 2007. The provisions of Act of 1944 and the Rules made thereunder shall be applicable to refund, and the exemption is only a reference to the source of power to exempt the NCCD, education cess, secondary and higher education cess. A notification has to be issued for providing exemption under the said source of power. In the absence of a notification containing an exemption to such additional duties in the nature of education cess and secondary and higher education cess, they cannot be said to have been exempted. The High Court was right in relying upon the decision of three-Judge Bench of this Court in Modi Rubber Limited (supra), which has been followed by another three-Judge Bench of this Court in Rita Textiles Private Limited (supra). 41. The Circular of 2004 issued based on the interpretation of the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Thus, the decisions in SRD Nutrients Private Limited and Bajaj Auto Limited (supra) are clearly per incuriam. The decisions in Modi Rubber (supra) and Rita Textiles Private Limited (supra) are binding on us being of Coordinate Bench, and we respectfully follow them. We did not find any ground to take a different view. 44. Resultantly, we have no hesitation in dismissing the appeals. The judgment and order of the High Court are upheld, and the appeals are dismissed. No costs. 9. Further, as regards the appropriation of an amount of Rs.4,61,315/- is concerned, I find that the impugned order is not sustainable because appropriation cannot be done without issuing any show cause notice and without granting personal hearing to the appellant. This issue was considered by the various benches of this Tribunal in the following cases: Deposit Insurance and Credit Guarantee Corporation vs. CCE ST (LTU), Mumbai [2023] 156 taxmann.com 139 (Mumbai CESTAT) Indian Oil Corporation Ltd vs. CCE, Vadodara - [2003] 2003 taxmann.com 1034 (New Delhi CESTAT) Kerala State Electricity Board vs. CCE, Cochin - [2002] 2002 taxmann.com 2234 (Bangalore CEGAT) The Tribunal in all the cases cited supra, has held ..... X X X X Extracts X X X X X X X X Extracts X X X X
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