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TMI Blog2007 (7) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... o be quashed. Accordingly, writ petition is allowed, impugned orders are set aside to the extent the petitioner has been denied the claim to rebate on surcharge on Excise Duty appropriated by Union of India as Education Cess for funding Universalised quality basic education programme but was paid by the petitioner only as Duty of Excise w.e.f. 9-7-2004 to 5-9-2004. There is no contention about eligibility to rebate w.e.f. 6-9-2004. - 5969 of 2006 - - - Dated:- 17-7-2007 - Rajesh Balia and Manak Lall Mohta, JJ. [Order]. - Heard Learned counsel for the parties. 2.The petitioner has challenged the order of revisional authority annexure 5 dated 31st July 2006 withdrawing the claim to rebate on exports of goods manufactured, by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not entitled to claim rebate on Education Cess payable under the Finance Act, 1994. However, it is not disputed that even prior to Notification dated 6-9-2004, on export of man made fabrics, rebate was available in respect of Excise Duties paid thereon. 7.For reaching this conclusion, the revisional authority relied on notification dated 6-9-2004, Annex. 1 attached to the writ petition in which an Explanation was appended defining 'Duty' for the purpose of notification. The definition of 'Duty' was inclusive one and it included under clause (g) Education Cess on excisable goods as levied under clause 81 read with clause 83 of the Finance Bill 2/2004. Considering that under this Notification alone rebate on Educatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y manufacturer in respect of export of his product out of country until the Notification was issued. 11.It will be profitable to notice Sections 91, 92 93 under which Education Cess was levied, which read as under :- 91.Education Cess. - Withou(1)t prejudice to the provisions of sub-section (11) of Section 2, there shall be levied and collected, in accordance with the provisions of this Chapter as surcharge for purposes of the Union, a cess to be called the Education Cess, to fulfil the commitment of the Government to provide and finance universalised quality basic education. (2)The Central Government may, after due appropriation made by Parliament by law in this behalf, utilise, such sums of money of the Education Cess levied u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luding those relating to refunds and exemptions from duties and imposition of penalty shall, as far as may be, apply in relation to the levy and collection of the Education Cess on excisable goods as they apply in-relation to the levy and collection of the duties of excise on such goods under the Central Excise Act, 1944 or the rules, as the case may be. 12.Under Section 93(1) the Education Cess has specifically been directed that Education Cess levied under Section 91 shall be a duty of excise. In sub-section (2), it was further ordained that Education Cess on excisable goods shall be in addition to excise duty chargeable under Central Excise Act, 1944 or under any other law. Thus, statutorily the Education Cess levied on excisable goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Service Tax by way of charging surcharge to be collected for the purpose of Union. But, it was made clear that in respect of all the three taxes, the surcharge collected along with the tax will bear the same character of respective taxes to which surcharge was appended and was to be governed by the respective enactments under which Education Cess in the form of surcharge is levied collected. 16.Apparently, when at the time of collection, surcharge has taken the character of parent levy, whatever may be the object behind it, it becomes subject to the provision relating to the Excise Duty applicable to it in the manner of collecting the same obligation of the tax payer in respect of its discharge as well as exemption concession by w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of appellate authority as welt as revisional Authority disallowed the rebate on excise duty payable by the petitioner as surcharge levied on excise duty named as Education Cess for the purpose of appropriating the same for specific project of the Government in funding universalised quality basic education cannot be sustained. If we read Section 93 as a whole, it becomes clear that existing Notification providing exemption to the Duty of Excise is otherwise applicable to Education Cess also w.e.f. it became payable as part of the Duty of Excise or at any rate special Excise Duty collected under Finance Act, and did not need a separate Notification in that regard. The position may have been different if the Education Cess would have been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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