Facts of the Case

The Commissioner of CGST and Central Excise Jammu filed the present appeal under Section 35G of the Central Excise Act, 1944 against an order of the Customs, Excise and Service Tax Appellate Tribunal, Chandigarh.

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 under Section 35G against orders passed by CESTAT. In those matters, CESTAT had set aside the orders of the Commissioner (Appeals) and the Adjudicating Authority and had directed refund of Education Cess and Secondary & Higher Education Cess to the assessees in view of the Supreme Court decision in M/s SRD Nutrients Pvt. Ltd. vs Commissioner of Central Excise, Guwahati, reported as 2017 (335) ELT 481 (SC).

The Court further noted that the earlier batch of appeals, together with applications seeking condonation of delay and with CEA No. 10/2022 as the lead case, 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 the challenge was directed against a similar order and was based on almost identical grounds that had already been considered and dealt with by the Coordinate Bench in the earlier judgment dated 23 May 2022.

Issues Involved

The principal issues arising from the order were:

  1. Whether the appeal filed by the Revenue under Section 35G of the Central Excise Act, 1944 against the CESTAT order warranted separate consideration when a batch of appeals involving similar orders and almost identical grounds had already been dismissed by a Coordinate Bench.
  2. Whether the Revenue’s challenge concerning the CESTAT-directed refund of Education Cess and Secondary & Higher Education Cess could survive in light of the earlier High Court judgment dated 23 May 2022.
  3. Whether judicial parity required the present appeal to be disposed of on the same terms and conditions as the previously decided batch of similar appeals.

Petitioner’s / Appellant’s Arguments

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

From the order, the challenge concerned a matter similar to the earlier batch of Revenue appeals in which CESTAT 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 appeal was founded on grounds that the High Court found to be almost identical to those already dealt with by the Coordinate Bench in its judgment dated 23 May 2022. The order does not separately reproduce detailed propositions or submissions advanced by the appellant beyond recording the nature of the challenge and its similarity with the earlier batch. Therefore, no additional argument should be attributed to the Revenue beyond what is expressly reflected in the judicial order.

Respondent’s Arguments

The order records that none appeared for the respondent, Sun Pharmaceutical Industries.

Accordingly, the judicial order does not record any separate oral or written arguments advanced on behalf of the respondent in the present proceedings. This is an important factual clarification because no respondent-side contention should be inferred or added beyond the text of the order.

Court Order / Findings

The High Court examined the contents of the present appeal and made the following findings:

  • The challenge in the instant appeal was against a similar order to those involved in the earlier batch of appeals.
  • The grounds raised were almost identical to the grounds already dealt with by the Coordinate Bench.
  • The Coordinate Bench had already passed its judgment on 23 May 2022 concerning the earlier batch.
  • To maintain parity, the present appeal was required to be dismissed on the same terms and conditions as laid down in the earlier judgment dated 23 May 2022.
  • Consequently, the High Court dismissed the appeal.
  • Any interim directions subsisting as on the date of the order stood vacated.

Important Clarification

This order is significant for its application of judicial parity and consistency. The High Court did not undertake a fresh, independent and detailed adjudication of the underlying Education Cess refund controversy in this two-page order. Instead, it found that the present challenge concerned a similar order and almost identical grounds already dealt with by a Coordinate Bench.

Accordingly, the dismissal was expressly ordered “with a view to maintain parity” and on the same terms and conditions as the judgment dated 23 May 2022.

A further important clarification is that the uploaded order refers to the Supreme Court ruling in M/s SRD Nutrients Pvt. Ltd. vs Commissioner of Central Excise, Guwahati, 2017 (335) ELT 481 (SC) as the decision in view of which CESTAT had directed refund of Education Cess and Secondary & Higher Education Cess in the related matters. The present High Court order itself does not set out a fresh detailed interpretation of that Supreme Court ruling.

Section Involved

Section 35G of the Central Excise Act, 1944 — The provision expressly referred to in the order under which the Commissioner filed appeals before the High Court against the CESTAT orders.

Subject Matter: Refund of Education Cess and Secondary & Higher Education Cess, in the context of CESTAT orders referred to by the High Court.

Link to download the order-https://mytaxexpert.co.in/uploads/1783161067_889compressed.pdf

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