M/S Sri Balaji Coke Industries vs. Union Of INDIA And 6 Ors.

Held

The Court directed the respondents, specifically respondent Nos. 4, 5, and 6, to refund the education cess and secondary and higher education cess collected from the petitioner for the period of March 2011 to December 2015. This decision was based on the petitioner's submission that they were entitled to exemption from central excise duty under the North-East Industrial Policy, 2007, and notification No. 20/2007. The Court also took note of the submission by the learned Additional Solicitor General of India that the competent authority had decided to refund such cess. The Court followed its earlier decision in an identical case, WP(C) No. 5760 of 2018 (Kamakhya Plastics Pvt. Ltd –Vs- Union of India), which had directed the refund of similar cesses. The refund was ordered to be processed within three months of receiving a certified copy of the order. No issues were expressly left undecided.

Facts

The petitioner, M/s Sri Balaji 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. The petitioner argued that since excise duty itself was exempted, the cess levied on excise duty should also not be leviable. The petitioner relied on an identical case decided by the same High Court, WP(C) No. 5760 of 2018 (Kamakhya Plastics Pvt. Ltd –Vs- Union of India), where a similar refund was directed.

Key Issues

1. Whether education cess and secondary and higher education cess are leviable on excise duty when the excise duty itself is exempted under an industrial policy? Petitioner's contention: The petitioner argued that education cess and secondary and higher education cess are levied as a component of excise duty. Therefore, if excise duty is exempted under the North-East Industrial Policy, 2007, and notification No. 20/2007, then the cess levied thereon should also be refunded. The petitioner cited the decision in WP(C) No. 5760 of 2018 (Kamakhya Plastics Pvt. Ltd –Vs- Union of India) as precedent. Revenue's contention: The learned Additional Solicitor General of India 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.