Facts of the Case

The Commissioner of Central GST and Central Excise (Jammu and Kashmir), Jammu filed an appeal before the High Court under Section 35G of the Central Excise Act, 1994 against an order passed by the Customs, Excise and Service Tax Appellate Tribunal, Chandigarh (“CESTAT”).

The dispute formed part of a series of similar matters in which CESTAT had set aside orders passed by the Commissioner (Appeals) and the Adjudicating Authority and had 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, reported as 2017 (335) ELT 481 (SC).

The High Court noted that a batch of similar appeals filed by the Commissioner, together with applications seeking condonation of delay and led by CEA No. 10/2022, had already been dismissed by a Coordinate Bench through judgment dated 23 May 2022.

In the present appeal, the Court found that the challenged order was similar to those involved in the earlier batch and that the grounds raised were almost identical to the grounds already considered and dealt with by the Coordinate Bench.

Issues Involved

The principal issues arising from the judgment were:

  1. Whether the Revenue’s appeal under Section 35G of the Central Excise Act, 1994 against the CESTAT order directing refund of Education Cess and Secondary & Higher Education Cess warranted separate consideration when substantially identical appeals had already been decided by a Coordinate Bench.
  2. Whether the present appeal, involving almost identical grounds and a similar order, should be governed by the judgment dated 23 May 2022 passed in the earlier batch of appeals led by CEA No. 10/2022.
  3. Whether parity and consistency required dismissal of the present appeal on the same terms and conditions as the earlier Coordinate Bench judgment.

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, 1994.

From the judgment, the Revenue’s challenge concerned an order similar to those questioned 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 to the assessee in view of M/s SRD Nutrients Pvt. Ltd. vs Commissioner of Central Excise, Guwahati.

The Court expressly recorded that the challenge in the present appeal was made on almost identical grounds to those already dealt with by the Coordinate Bench in its judgment dated 23 May 2022. The brief judgment does not separately reproduce any further detailed submissions of the appellant, and therefore no additional arguments should be attributed beyond what is expressly reflected in the order.

Respondent’s Arguments

The judgment records that none appeared on behalf of the respondent, M/s Nitin Enterprises.

Accordingly, the order does not record any separate oral or detailed written arguments advanced on behalf of the respondent. The Court proceeded after examining the contents of the appeal and comparing the matter with the earlier batch already decided by the Coordinate Bench.

Court Order / Findings

The High Court examined the contents of the present appeal and found that:

  • The order under challenge was similar to the orders involved in the earlier batch of appeals.
  • The grounds raised in the present matter were almost identical to those already considered and decided by the Coordinate Bench.
  • The earlier batch of appeals, led by CEA No. 10/2022, had already been dismissed by judgment dated 23 May 2022.
  • The grounds involved in the present appeal already stood dealt with by the Coordinate Bench.
  • To maintain parity, the present appeal was required to receive the same treatment.

Accordingly, the High Court dismissed the appeal on the same terms and conditions as laid down in the Coordinate Bench judgment dated 23 May 2022.

The Court further directed that any interim direction(s), if subsisting as on the date of judgment, would stand vacated. This operative finding appears on page 2 of the uploaded order.

Important Clarification

This judgment is particularly important for understanding the Court’s approach to judicial consistency and parity in substantially identical tax appeals. The High Court did not undertake an independent, elaborate reconsideration of the underlying cess-refund controversy. Instead, it found that the present appeal challenged a similar order on almost identical grounds already dealt with by a Coordinate Bench.

Therefore, the precise ratio of this short judgment is that, where the present Revenue appeal is materially similar to an earlier batch already decided on almost identical grounds, the Court may maintain parity by disposing of the subsequent appeal on the same terms and conditions.

It is also important to clarify that the judgment refers to M/s SRD Nutrients Pvt. Ltd. vs Commissioner of Central Excise, Guwahati, 2017 (335) ELT 481 (SC) as the Supreme Court decision in view of which CESTAT had directed refund of Education Cess and Secondary & Higher Education Cess. The High Court’s present order itself is brief and principally rests upon the earlier Coordinate Bench judgment dated 23 May 2022.

Sections / Legal Provisions Involved

Section 35G of the Central Excise Act, 1994 — The appeal was filed by the Commissioner before the High Court under this provision against the CESTAT order.

Education Cess and Secondary & Higher Education Cess — The substantive dispute concerned refund of these cesses to the assessee.

Judicial Precedent and Parity — The appeal was dismissed in line with the Coordinate Bench judgment dated 23 May 2022 because the challenged order and grounds were found to be substantially similar.

 Link to download the order -https://mytaxexpert.co.in/uploads/1783401554_1333compressed.pdf

 

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