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TMI Blog2024 (12) TMI 405X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of KUMAR ARCH TECH PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, JAIPUR-II [ 2013 (4) TMI 482 - CESTAT NEW DELHI - LB] , which order has in fact been followed by this very Bench in the case of M/S. SKM EGG PRODUCTS EXPORT (INDIA) LTD. VERSUS COMMISSIONER OF GST CENTRAL EXCISE, ANAIMEDU, SALEM [ 2024 (6) TMI 1173 - CESTAT CHENNAI] . In the said order, this Bench has referred to the findings at para 5 of the Larger Bench order and held that the impugned order is not in accordance with law. The impugned order cannot sustain for which reason the same is set aside - Appeal allowed. - Hon ble Shri P. Dinesha, Member (Judicial) And Hon ble Shri Vasa Seshagiri Rao, Member (Technical) Smt. Radhika Chandrasekar, Advocate for the Appellant Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sekar, learned Advocate on behalf of the appellant and Shri M. Selvakumar, learned Authorised Representative for the Revenue. On hearing both sides, we find the only issue that is to be decided by us is, whether the rejection of refund by the Revenue authorities is justified ? 4. Smt. Radhika Chandrasekar, learned Advocate would contend, at the outset, that the issue is no more res integra since the very same issue has been addressed to and answered in favour of the taxpayer by the Larger Bench of the Tribunal in the case of Kumar Arch Tech Pvt. Ltd. Vs. CCE 2013 (290) ELT 372 (Tri. LB), which order has in fact been followed by this very Bench in the case of SKM Egg Products Export (India) Ltd. Vs. CCE, Salem vide Final Order No. 40748/2024 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... niversalized quality of basic education and secondary and higher education. Surcharge on a tax means additional tax on that tax. As discussed above, though education cess and S H cess being cess to enable the Government to finance its expenditure on providing basic education and secondary and higher education, is a levy different and distinct from the tax on which it is levied as surcharge, the mode or measure of this levy is surcharge at the rate of 2% and 1% on the existing levies i.e. the taxes being collected by the Government as - (a) Central excise duties under Central Excise Act, 1944 or any other law in force; (b) customs duties under Customs Act, 1962 read with Customs Tariff Act, 1975 or any other law in force; and (c) Service tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 93 of Finance Act, 2004 and Section 138 of Finance Act, 2007 is charged, it would amount to charging education cess on education cess for which there is no sanction in law. Apex Court in case of Jain Brothers v. U.O.I., reported in (1970) 77 ITR 107 has held that there can be no objection for double taxation if the legislature has distinctly enacted it, but while interpreting general words of taxation, the same cannot be so interpreted as to tax the subject twice over to the same tax. In our view, it is this principle which has to be kept in mind while calculating education cess and S H cess on DTA clearances of a 100% EOU. Since the DTA clearance of a 100% EOU attract central excise duty and in terms of proviso to Section 3(1) of Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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