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

Held

The Court directed the respondents, specifically respondent Nos. 4, 5, and 6 (Commissioner of Central GST, Assistant Commissioner GST, and Superintendent GST), to refund the education cess and secondary and higher education cess collected from the petitioner during the period of March 2011 to December 2015. The Court's decision was based on the submission by the Assistant Solicitor General of India that the competent authority in the Ministry of Finance had decided to refund such cess. This aligns with the petitioner's prayer and the precedent set in the similar case of Kamakhya Plastics Pvt. Ltd. The refund was to be processed within three months from the receipt of a certified copy of the order. The Court did not expressly leave any issue undecided.

Facts

M/s. Kamrup Coke Industries, an industrial unit in Assam, filed a writ petition seeking a refund of education cess and secondary and higher education cess collected from March 2011 to December 2015. The petitioner claimed entitlement to 100% refund of central excise duty paid 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, WP(C) No. 5760 of 2018 (Kamakhya Plastics Pvt. Ltd –Vs- Union of India), decided by the same court, which had directed a refund.

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, in light of the exemption granted under the North-East Industrial Policy, 2007, and Notification No. 20/2007, particularly concerning Section 3 of the Finance Act, 2004 and Section 140 of the Finance Act, 2007 (as these are the provisions under which such cesses are levied and collected). Petitioner's arguments: The petitioner contended that as the underlying excise duty was exempted under the industrial policy, the education cess and secondary and higher education cess, which are levied on excise duty, should also not be leviable. They relied on the principle that a cess on an exempted duty should also be exempted. They cited the decision in WP(C) No. 5760 of 2018 (Kamakhya Plastics Pvt. Ltd –Vs- Union of India) as precedent. Revenue's arguments: The learned Assistant 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.