Facts of the Case

The Commissioner of Central GST and Central Excise, Jammu and Kashmir, Jammu filed a batch of appeals before the High Court under Section 35G of the Central Excise Act, 1944 against orders passed on different dates by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Chandigarh.

In those matters, CESTAT had set aside the orders passed by the Commissioner (Appeals) and the Adjudicating Authority and had directed refund of Education Cess and Secondary & Higher Education Cess to the assessees. 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 specifically recorded that the earlier batch of 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 through judgment dated 23 May 2022.

The present appeal, CEA No. 291/2022, challenged a similar order on almost identical grounds. The Court found that those grounds had already been dealt with by the Coordinate Bench in the earlier batch judgment.

Issues Involved

The principal issues arising from the judgment were:

  1. Whether the Revenue’s appeal under Section 35G of the Central Excise Act, 1944 against the CESTAT order concerning refund of Education Cess and Secondary & Higher Education Cess required separate consideration when an earlier batch of appeals involving similar orders and almost identical grounds had already been dismissed.
  2. Whether the High Court should maintain parity with the Coordinate Bench judgment dated 23 May 2022.
  3. Whether the present Revenue appeal could survive when the Court found that the challenge was similar to the subject matter of the previously decided batch of appeals.
  4. What consequence should follow for any subsisting interim directions after dismissal of the appeal.

Appellant’s Arguments

The appellant, the Commissioner of Central GST and Central Excise J&K, Jammu, challenged the CESTAT order under Section 35G of the Central Excise Act, 1944.

From the judgment, the Revenue’s challenge concerned a Tribunal order of the same nature as those involved in the earlier batch of appeals, where CESTAT had set aside the orders of the Commissioner (Appeals) and the Adjudicating Authority and directed refund of Education Cess and Secondary & Higher Education Cess.

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

Important accuracy note: The two-page judgment does not separately reproduce or elaborate the appellant’s detailed legal submissions. Therefore, no additional arguments should be attributed to the appellant beyond what is expressly reflected in the order.

Respondent’s Arguments

The judgment records that none appeared for the respondent.

Accordingly, no separate oral or written arguments of the respondent are reproduced in the judgment.

The Court nevertheless examined the contents of the appeal and compared the challenge with the earlier batch of appeals already decided by the Coordinate Bench.

Important accuracy note: Since the order records “None” for the respondent’s appearance, no substantive respondent argument should be invented or inferred beyond the contents of the judgment.

Court Order / Findings

The High Court recorded the following material findings:

  1. A batch of similar appeals had earlier been filed by the Commissioner under Section 35G of the Central Excise Act, 1944 against CESTAT orders relating to refund of Education Cess and Secondary & Higher Education Cess.
  2. Those earlier appeals, together with delay-condonation applications, had already been dismissed by a Coordinate Bench on 23 May 2022.
  3. After examining the contents of the present appeal, the Court found that the challenge was directed against a similar order to those involved in the earlier batch.
  4. The grounds raised in the present appeal were almost identical to the grounds already dealt with by the Coordinate Bench.
  5. To maintain parity, the High Court dismissed the present appeal on the same terms and conditions as laid down in the Coordinate Bench judgment dated 23 May 2022.
  6. Any interim directions subsisting on the date of the judgment were ordered to stand vacated.

Accordingly, the Revenue’s appeal was dismissed.

Important Clarification

This judgment is particularly important for correctly understanding the scope of the High Court’s decision:

  • The High Court did not set out a fresh, independent and detailed examination of the entire legal controversy concerning refund of Education Cess and Secondary & Higher Education Cess.
  • The appeal was dismissed primarily because the Court found that a similar order and almost identical grounds had already been considered and decided by a Coordinate Bench.
  • The Court expressly relied on the need to maintain parity with the earlier judgment dated 23 May 2022.
  • The judgment refers to M/s SRD Nutrients Pvt. Ltd. vs Commissioner of Central Excise, Guwahati, 2017 (335) ELT 481 (SC) because the CESTAT refund directions in the underlying class of matters had been made in view of that Supreme Court decision.
  • The uploaded judgment does not provide the case title of the lead matter CEA No. 10/2022; therefore, it would be inaccurate to assign a party name to that lead case without independent verification.
  • The uploaded judgment also does not reproduce the detailed terms and conditions of the Coordinate Bench judgment dated 23 May 2022; it only states that the present appeal was dismissed on the same terms and conditions.
  • The respondent was unrepresented in the present proceedings, as the judgment records “None” against the respondent’s appearance.

Sections Involved

Section 35G of the Central Excise Act, 1944 – The statutory provision expressly mentioned in the judgment under which the Commissioner filed the appeal before the High Court against the CESTAT order.

Education Cess and Secondary & Higher Education Cess – These were the levies forming the subject matter of the refund directions discussed in the judgment. The uploaded order does not specify separate charging-section numbers for these cesses and, therefore, no additional statutory provision should be inserted without external verification.

 Link to download the order -https://mytaxexpert.co.in/uploads/1783330565_1325compressed.pdf

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