M/S. Shiva Coke Industries vs. Union Of INDIA And 5 Ors.

Held

The Court held that the respondents, specifically respondent Nos. 4, 5, and 6 (Commissioner of Central GST, Asstt. Commissioner GST, and Superintendent GST), were directed to refund the education cess, including secondary and higher education cess, collected from the petitioner during the period of March 2011 to December 2015. This decision was based on the petitioner's claim of exemption from excise duty under the North-East Industrial Policy and notification No. 20/2007, and the acknowledgment by the revenue that a decision had been taken to refund such cess. The Court also took note of a previous identical order in WP(C) No. 5760 of 2018. The refund was to be processed within three months of receiving a certified copy of the order. The Court did not expressly leave any issue undecided.

Facts

The petitioner, M/s. Shiva Coke Industries, an industrial unit in Assam, sought a refund of education cess and secondary and higher education cess collected from March 2011 to December 2015. The petitioner claimed exemption from central excise duty under the North-East Industrial Policy, 2007, and notification No. 20/2007. They argued that since excise duty itself was exempted, the cess levied on it should also not be leviable. The petitioner cited an identical case, WP(C) No. 5760 of 2018 (Kamakhya Plastics Pvt. Ltd –Vs- Union of India), decided on August 27, 2018, where a similar refund was directed. The respondents, represented by the Central Government, acknowledged a decision to refund such cess.

Key Issues

1. Whether the petitioner is entitled to a refund of education cess and secondary and higher education cess collected for the period March 2011 to December 2015, considering their exemption from central excise duty under the North-East Industrial Policy, 2007 and notification No. 20/2007? Petitioner's contention: The petitioner argued that education cess and secondary and higher education cess are levied on excise duty. Since the excise duty itself was exempted under the industrial policy, these cesses should not have been levied or collected. They relied on the principle that a tax on a tax is not leviable if the base tax is exempted. They also relied on the High Court's decision in WP(C) No. 5760 of 2018 (Kamakhya Plastics Pvt. Ltd –Vs- Union of India). Revenue's contention: The learned counsel for the Central Government submitted that a decision had been taken by the competent authority in the Ministry of Finance to refund such cess, irrespective of whether the assessee had approached the High Court.