CONSTITUTION OF INDIA, 1950

Article 226 Section 11(A-1)

Writ - Exemption of Education Cess and Secondary and Higher Education Cess - Allowability of -

The petitioners in course of their economic activities under the Northeast Industrial Policy, 2007 were entitled to certain exemption in the payment of excise duty. Along with excise duty, as per the relevant law in force at that period to time they were also required to pay certain Education Cess and Secondary and Higher Education Cess. In the circumstance, a question had arisen as to whether in view of the exemption granted to the excise duty the petitioner would also be entitled to an exemption to the payment of Education Cess and Secondary and Higher Education Cess. Held: Question was decided by the Supreme Court in its pronouncement in SRD Nutrients (P) Ltd. v. Commissioner of Central Excise, Guwahati ((2018) 1 SCC 105 : 2017 TaxPub(EX) 1349 (SC)) wherein it was held that assessee was entitled to refund of education cess and higher education cess which was paid along with the excise duty once the excise duty itself was exempted from levy. The demand-cum-show-cause notice was assailed in this writ petition on the ground that the condition precedent to invoke the power under section 11(A-1) is that the refund made must be erroneous. Condition precedent of section 11(A-1) of the Central Excise Act, 1944 was not satisfied. Until further orders, operation of the demand-cum show-cause notice was stayed. The Registry was directed to list appeal on 8-9-2020.

REFERRED : M/s. Unicorn Industries v. Union of India & Others 2019 SCC Online SC 1567 Bajaj Auto Limited v. Union of India & Others 2019 (366) E.L.T. 577 (SC) M/s. SRD Nutrients Private Limited v. Commissioner of Central Excise Guwahati (2018) 1 SCC 105 : 2017 TaxPub(EX) 1349 (SC) Union of India and Others v. Modi Rubber Limited and Others 1986 TaxPub(EX) 0392 (SC).

FAVOUR : Appeal to be listed on 8-9-2020

A.Y. :

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