M/S. Sheo Shakti 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. This direction was based on the submission by the learned Additional Solicitor General that the competent authority in the Ministry of Finance had decided to refund such cess. The Court also noted that an identical case, WP(C) No. 5760 of 2018 (Kamakhya Plastics Pvt. Ltd –Vs- Union of India), decided on 27.08.2018, had resulted in a similar direction for refund. The refund is to be processed within three months of the receipt of a certified copy of the order.
Facts
The petitioner, M/s. Sheo Shakti Coke Industries, an industrial unit in Assam, sought a direction from the Gauhati High Court to refund 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. 20/2017. The petitioner argued that since excise duty itself was exempted, the cess levied on it should also not be leviable. The respondents are the Union of India and various GST authorities.
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, given its entitlement to exemption from central excise duty under the North-East Industrial Policy, 2007 and notification No. 20/2017? Petitioner's contention: The petitioner argued that as excise duty itself was exempted under the industrial policy, the education cess and secondary and higher education cess, which are levied on excise duty, should not have been collected. They relied on the principle that a cess on an exempted duty should also be exempted. Revenue's contention: The learned Additional Solicitor General 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.
Sections Cited
notification No. 20/2017
AI-generated summary — verify with the full judgment below
Page No.# 1/3 GAHC010230042018
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C) 7138/2018 1:M/S. SHEO SHAKTI COKE INDUSTRIES HAVING ITS PRINCIPAL PLACE OF BUSINESS SITUATED AT MORANJANA, P.O. MORANJAN, DIST. KAMRUP, ASSAM AND ITS INDUSTRIAL UNIT SITUATED AT THE SAME PLACE, REP. BY SRI ARABINDO KUMAR SAHA,
VERSUS 1:UNION OF INDIA AND 5 ORS. REP. BY THE SECRETARY TO THE GOVT. OF INDIA MINISTRY OF FINANCE, DEPTT. OF REVENUE, NORTH BLOCK, NEW DELHI-01. 2:THE UNDER SECRETARY TO THE GOVT. OF INDIA MINISTRY OF FINANCE DEPTT. OF REVENUE NEW DELHI-01. 3:THE SECRETARY TO THE GOVT. OF INDIA MINISTRY OF COMMERCE AND INDUSTRY UDYOG BHAWAN NEW DELHI-01. 4:THE COMMISSIONER OF CENTRAL GST (EARLIER COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX) G.S. ROAD GUWAHATI ASSAM-05. 5:THE ASSTT. COMMISSIONER GST (EARLIER COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX) OFFICE OF THE ASSTT. COMMISSIONER OF CENTRAL EXCISE
Page No.# 2/3 GUWAHATI ASSAM-05. 6:THE SUPERINTENDENT GST (EARLIER SUPERINTENDENT OF CENTRAL EXCISE AND SERVICE TAX) TECH GUWAHATI ASSAM-05 Advocate for the Petitioner
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