Assam Enterprise LLP. vs. Union Of INDIA And 6 Ors

Held

The Court held that the education cess and higher education cess paid by the petitioner are refundable. This decision was based on the precedent set by the Hon'ble Supreme Court in M/s SRD Nutrients Private Limited –vs- Commissioner of Central Excise, Guwahati. The Supreme Court had concluded that education cess and higher education cess, levied at 2% of the excise duty, partake of the character of excise duty itself. Consequently, when excise duty is exempted, these cesses are also eligible for refund. The Court noted the consensus between the parties on this issue. Accordingly, the respondents were directed to calculate and refund the education cess and higher education cess paid by the petitioner from December 2011 to February 2015 within five months of receiving a certified copy of the order. No issue was expressly left undecided.

Facts

The petitioner, Assam Enterprise LLP, an industrial unit in Assam, sought a refund of education cess and higher education cess paid between December 2011 and February 2015. These cesses were levied under the Finance Act of 2004, in addition to excise duty. The petitioner claimed these refunds based on the North East Industrial and Investment Promotion Policy (NEIIPP), 2007, which provided for exemptions and refunds of excise duty for eligible industrial units. The core of the dispute was whether the education cess and higher education cess were considered part of the excise duty for the purpose of refund under the NEIIPP, 2007.

Key Issues

1. Whether education cess and higher education cess are to be treated as part of excise duty for the purpose of refund under the North East Industrial and Investment Promotion Policy (NEIIPP), 2007, when excise duty itself is exempted. This issue turns on the interpretation of the NEIIPP, 2007 and the nature of education cess and higher education cess. Petitioner's contention: The petitioner argued that the Hon'ble Supreme Court in M/s SRD Nutrients Private Limited –vs- Commissioner of Central Excise, Guwahati (dated 10.11.2017) held that education cess and higher education cess partake of the character of excise duty and are therefore eligible for refund when excise duty is exempted. They relied on this judgment to claim refund for the period December 2011 to February 2015. Revenue's contention: The learned ASGI, appearing for the respondents, submitted that in light of the Supreme Court's pronouncement in M/s SRD Nutrients Private Limited, the authorities are bound to refund the education cess and higher education cess paid by the petitioner.