Facts of the Case

The Commissioner of CGST and Central Excise Jammu filed an appeal before the High Court of Jammu & Kashmir and Ladakh at Jammu under Section 35G of the Central Excise Act, 1944, challenging an order of the Customs, Excise and Service Tax Appellate Tribunal, Chandigarh.

The dispute formed part of a broader series of appeals concerning orders passed by the CESTAT whereby the Tribunal had set aside orders of the Commissioner (Appeals) and the Adjudicating Authority and directed refund of Education Cess and Secondary & Higher Education Cess to the assessee.

The Tribunal’s approach was based on the decision of the Supreme Court in M/s SRD Nutrients Pvt. Ltd. vs Commissioner of Central Excise, Guwahati, 2017 (335) ELT 481 (SC).

The High Court recorded that a batch of similar appeals had earlier been filed by the Commissioner, Central GST and Central Excise (Jammu and Kashmir), Jammu. Those appeals, together with applications seeking condonation of delay, had CEA No. 10/2022 as the lead case and had already been dismissed by a Coordinate Bench of the High Court by judgment dated 23 May 2022.

Upon examining the present appeal, the Court found that it challenged a similar order on almost identical grounds that had already been considered and dealt with in the earlier batch of appeals.

Issues Involved

  • Whether the Revenue’s appeal under Section 35G of the Central Excise Act, 1944 against the CESTAT order directing refund of Education Cess and Secondary & Higher Education Cess was maintainable or required separate consideration when almost identical grounds had already been adjudicated by a Coordinate Bench.
  • Whether the High Court should interfere with the CESTAT order when a similar controversy had already been decided in the earlier batch of appeals by judgment dated 23 May 2022.
  • Whether parity and consistency required dismissal of the present appeal on the same terms and conditions as the earlier judgment.
  • Whether the dispute relating to refund of Education Cess and Secondary & Higher Education Cess stood governed, in the context recorded by the High Court, by the earlier proceedings arising from the Supreme Court decision in M/s SRD Nutrients Pvt. Ltd. vs Commissioner of Central Excise, Guwahati.

Appellant’s Arguments – Commissioner of CGST and Central Excise Jammu

The Revenue challenged the CESTAT order under Section 35G of the Central Excise Act, 1944.

From the judgment, the challenge concerned a CESTAT order similar to those involved in the earlier batch of appeals, where the Tribunal had set aside the orders passed by the Commissioner (Appeals) and the Adjudicating Authority and directed refund of Education Cess and Secondary & Higher Education Cess to the assessee.

The High Court specifically observed that the present challenge was founded on almost identical grounds to those already dealt with by the Coordinate Bench in its judgment dated 23 May 2022.

Important note: The two-page order does not separately reproduce or elaborate detailed proposition-wise arguments advanced by the Revenue. Therefore, no additional argument beyond what is recorded in the judgment should be attributed to the appellant.

Respondent’s Arguments – Zuventus Healthcare Limited

The order records that none appeared for the respondent.

Accordingly, the judgment does not contain any separately recorded oral or written arguments advanced on behalf of Zuventus Healthcare Limited in the present hearing.

The case was decided after the High Court examined the contents of the appeal and compared the controversy with the earlier batch of appeals already decided by the Coordinate Bench.

Court Order / Findings

The High Court dismissed the Revenue’s appeal.

The Court recorded the following key findings:

  • A batch of similar appeals had earlier been filed under Section 35G of the Central Excise Act, 1944.
  • Those appeals arose from CESTAT orders concerning refund of Education Cess and Secondary & Higher Education Cess.
  • The earlier batch, with CEA No. 10/2022 as the lead case, had already been dismissed by a Coordinate Bench through judgment dated 23 May 2022.
  • The present appeal challenged a similar order.
  • The grounds raised in the present appeal were almost identical to those already dealt with by the Coordinate Bench.
  • With a view to maintaining parity, the High Court dismissed the present appeal on the same terms and conditions as laid down in the judgment dated 23 May 2022.
  • Any interim directions subsisting as on the date of the order were ordered to stand vacated.

Final Outcome

Revenue Appeal Dismissed.

The appeal filed by the Commissioner of CGST and Central Excise Jammu against Zuventus Healthcare Limited was dismissed in parity with the earlier Coordinate Bench judgment dated 23 May 2022.

Important Clarification

This order is particularly significant for understanding the role of judicial consistency and parity in connected tax litigation. The High Court did not undertake a fresh, detailed adjudication of the entire Education Cess refund controversy in this short order. Instead, it found that the impugned order and grounds of challenge were substantially similar to those already considered by a Coordinate Bench.

Accordingly, the Court followed the earlier judgment and dismissed the appeal on the same terms and conditions.

It is also important to distinguish between:

  • the present High Court order dated 21 November 2022;
  • the earlier Coordinate Bench judgment dated 23 May 2022, involving a batch of appeals with CEA No. 10/2022 as the lead case; and
  • the Supreme Court decision in M/s SRD Nutrients Pvt. Ltd. vs Commissioner of Central Excise, Guwahati, which the judgment records as the basis in view of which CESTAT had directed refund in the underlying category of disputes.

The present order itself does not reproduce the full reasoning of the judgment dated 23 May 2022. Therefore, the precise terms and conditions of that earlier judgment should be verified independently before relying upon them for any separate factual or legal proposition.

Sections / Legal Provisions Involved

  • Section 35G of the Central Excise Act, 1944 – Appeal to the High Court from specified orders of the Appellate Tribunal, subject to statutory requirements.
  • Central Excise Act, 1944 – Governing enactment expressly referred to in the judgment.
  • Education Cess – Refund controversy forming part of the underlying dispute.
  • Secondary & Higher Education Cess – Refund controversy forming part of the underlying dispute.

Link to download the order-https://mytaxexpert.co.in/uploads/1783158831_879compressed.pdf

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