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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 ..... COMMISSIONER OF CENTRAL EXCISE, JAMMU VERSUS RB. JODHAMAL CO. PVT. LTD. [ 2013 (9) TMI 345 - CESTAT NEW DELHI] , wherein it has been held that a unit availing of exemption under 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. The appellant is registered in the state of Jammu Kashmir and were availing benefit of area based 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of BED of Rs.3,561/- January 2011 Rs.3,561/- 3. E/648/2012 Rejected refund on account of education cess HSEC December 2010 Rs.23,654/- 2. Briefly stated facts of the present case are that the appellant is engaged in manufacture of P P Medicines and Scrap falling under Tariff Item Nos. 30049099, 30039090 and 39203090. The appellant filed refund claims of the Cenvat duty paid through account current (PLA) in terms of the provisions of Notification No. 56/2002-CE dated 14.11.2002 as amended. It was observed that the appellant had utilized the Cenvat Credit of Basic Excise Duty (BED) account for paying education cess and secondary higher education cess which they were required to pay in cash through PLA. It was accordingly held by the adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion 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 Notification No. 56/2002-CE. 5.2 The learned AR further submits that this issue has now been finally settled b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 India (supra), 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for limited exemption only under the Acts referred to therein. There is no reference to the Finance Act, 2001 by which NCCD was imposed, and the Finance Acts of 2004 and 2007 were not in vogue. The notification was questioned on the ground that it should have included other duties also. The notification could not have contemplated the inclusion of education cess and secondary and higher education cess imposed by the Finance Acts of 2004 and 2007 in the nature of the duty of excise. The duty on NCCD, education cess and secondary and higher education cess are in the nature of additional 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 un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 diff ..... X X X X Extracts X X X X X X X X Extracts X X X X
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