M/S. Pcl Cement And Pipe 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 of Central GST, and Superintendent of GST), to refund the education cess and secondary and higher education cess collected from the petitioner for the period January 2007 to February 2015. This decision was based on the petitioner's contention that they were exempted from excise duty under the North-East Industrial Policy, 2007, and the submission by the revenue that a policy decision had been taken to refund such cess. The Court followed the precedent set in an identical case, WP(C) No. 5760 of 2018. The refund was ordered to be processed within three months from the date of receipt of a certified copy of the order. The ratio decidendi is that cess levied on an exempted duty should also be refunded.

Facts

The petitioner, M/s. PCL Cement and Pipe Industries, filed a writ petition seeking a direction for the refund of education cess and secondary and higher education cess collected from January 2007 to February 2015. The petitioner, an industrial unit in Assam, claimed entitlement to benefits under the North-East Industrial Policy, 2007, including 100% exemption from central excise duty for 10 years, as per notification No. 20/2017 dated 24.04.2007. The petitioner contended that since excise duty itself was exempted, the education cess, which is levied on excise duty, should not have been collected. The petitioner cited an identical case, WP(C) No. 5760 of 2018 (Kamakhya Plastics Pvt. Ltd –Vs- Union of India), decided on 27.08.2018, where a similar refund was ordered.

Key Issues

1. Whether the petitioner is entitled to a refund of education cess and secondary and higher education cess collected for the period January 2007 to February 2015, given the exemption from central excise duty under the North-East Industrial Policy, 2007? Petitioner's arguments: The petitioner argued that as they were exempted from paying central excise duty under the North-East Industrial Policy, 2007, the education cess and secondary and higher education cess, which are levied on excise duty, should not have been collected. They relied on notification No. 33/99 read with 20/2007 and the precedent set in WP(C) No. 5760 of 2018 (Kamakhya Plastics Pvt. Ltd –Vs- Union of India). Revenue's arguments: The learned Additional Solicitor General of India submitted that a decision had been taken by the competent authority in the Ministry of Finance, Government of India, to refund such cess irrespective of whether the assessee had approached the High Court.