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TMI Blog2024 (11) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... ased exemption under N/N. 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. There is no infirmity in the impugned order vide which the refund of the education cess and secondary higher education cess has been denied - the impugned order is upheld by dismissing all the three appeals of the appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... 18 as well as vide the decisions in the following cases: * Sun Pharmaceuticals Industries vs. CCE, Jammu - 2007 (207) ELT 673 (Tri. Delhi) * Commissioner of Customs & C. Ex., Jammu vs. Bharat Box Factory Ltd - 2008-TIOL-407-HC-J&K-CX * Commissioner of C. Ex., Shillong vs. Godrej Consumer Products Ltd - 2007 (219) ELT 585 (Tri. Kolkata) 5.1 On the other hand, the learned Authorized Representative for the Revenue reiterates the findings of the impugned order and submits that this issue was considered in details by the Division Bench of this Tribunal in the case of Commissioner of C.E., Jammu vs. R.B. Jodhamal & Co. Pvt Ltd - 2013 (288) ELT 446 (Tri. Del.), wherein the Tribunal after considering the various judgments of the Tribunal and the High Courts, has held in para 8 as under: "8. In view of the above discussion, we hold that - (a) A unit availing of exemption under Notification No. 56/2002-CE cannot utilize BED Credit for payment of education cess and S & H cess which are not exempted under this notification; and (b) Extra BED paid through PLA on account of diversion of BED Credit for payment of education cess and S & H cess would not be refundable under Notificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... secondary & higher education cess, they cannot be said to have been exempted. 8. Further, I note that the provisions of Notification No. 56/2002-CE dated 14.11.2002 are pari-materia to the provisions of Notification No. 71/2003-CE dated 09.09.2003. It is pertinent to reproduce the relevant findings of the case of M/s Unicorn Industries cited (supra) which are reproduced herein below:- "39. Rule 8 of Central Excise Rules, 1944, authorises the Central Government to grant an exemption to any excisable goods from the whole or any part of duty leviable on such goods. Rule 8 is extracted hereunder : "8. Power to authorise an exemption from duty in special cases. - (1) The Central Government may from time to time, by notification in the official Gazette, exempt (subject to such conditions as may be specified in the notification) any excisable goods from the whole or any part of duty leviable on such goods. (2) The Central Board of Excise and Customs may by special order in each case exempt from the payment of duty, under circumstances of an exceptional nature, any excisable goods." The word 'duty' is defined under Rule 2(v) to mean the duty as levied under the Act. 40. Noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interpretation of the provisions by the Courts. 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 unacceptable as additional duty can always be determined and merely exemption granted in respect of a particular excise duty, cannot come in the way of determination of yet another duty based thereupon. The proposition urged that simply because one kind of duty is exempted, other kinds of duties automatically fall, cannot be accepted as there is no difficulty in making the computation of additional duties, which are payable under NCCD, education cess, secondary and higher education cess. Moreover, statutory notification must cover specifically the duty exempted. When a particular kind of duty is exempted, other types of duty or cess imposed by different legislation for a different purpose cannot be said to have been exempted. 42. The decision of Larger Bench is binding on the Smaller Bench has been held by this Court in several decisions such as Mahanagar Railway Vendors' Union v. Union of India & Ors., (1994) Suppl. 1 SCC 609, State of Maharashtra & Ors. v. Mana Adim Jamat Mandal, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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