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. These appeals challenged orders passed on different dates by the Customs, Excise and Service Tax Appellate Tribunal, Chandigarh (CESTAT).

The 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, reported as 2017 (335) ELT 481 (SC).

The High Court recorded 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 through judgment dated 23 May 2022.

In the present appeal concerning M/s Berger Paints India Limited, the Court found that the challenge was directed against a similar order and was founded on almost identical grounds that had already been considered and dealt with by the Coordinate Bench.

Issues Involved

The principal issues arising from the order were:

  1. 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 could be sustained.
  2. Whether the present appeal raised any materially distinguishable ground from the earlier batch of appeals already decided by the Coordinate Bench on 23 May 2022.
  3. Whether, in view of the similarity of the challenged order and the almost identical grounds raised, the principle of parity required the present appeal to be disposed of on the same terms and conditions as the earlier batch.
  4. Whether any subsisting interim directions should continue after dismissal of the appeal.

Appellant’s Arguments

The appellant, Commissioner of Central GST and Central Excise J&K, Jammu, challenged the order concerning refund of Education Cess and Secondary & Higher Education Cess.

From the judgment, the Court specifically noted that the present challenge related to an order similar to those involved in the earlier batch of appeals and was raised on almost identical grounds. Those grounds had already been dealt with by the Coordinate Bench in its judgment dated 23 May 2022.

The uploaded order does not separately reproduce or elaborate each individual legal submission of the appellant. Therefore, no additional argument should be attributed to the Revenue beyond what is expressly reflected in the judgment.

Respondent’s Arguments

The respondent was M/s Berger Paints India Limited, Unit-I, SIDCO, IGC, Samba, J&K.

The order records “None” under the appearance for the respondent. Accordingly, the judgment does not set out any separate oral or written arguments advanced on behalf of the respondent in the hearing reflected by the order.

Therefore, it would not be appropriate to infer or create any respondent submission beyond the contents of the judicial record.

Court’s Findings

The High Court examined the contents of the appeal and recorded the following material findings:

  • The order challenged in the present appeal was similar to the orders forming the subject matter of the earlier batch of appeals.
  • The grounds raised were almost identical to those already considered by the Coordinate Bench.
  • Those grounds had already been dealt with in the judgment dated 23 May 2022.
  • To maintain parity, the present appeal was required to be dismissed on the same terms and conditions as laid down in the earlier Coordinate Bench judgment.

The Court therefore found no basis to treat the present appeal differently from the earlier batch of substantially similar matters.

Court Order

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 the judgment, would stand vacated.

Thus, the Revenue’s appeal in CEA No. 281/2022 was dismissed by applying parity with the earlier batch of appeals.

Important Clarification

A significant clarification arising from the judgment is that the High Court’s disposal of the present matter was expressly based on the similarity of the challenged order and the almost identical grounds already adjudicated by the Coordinate Bench.

The judgment should therefore be read with the following precision:

  • The Court relied on the earlier Coordinate Bench judgment dated 23 May 2022.
  • The Court applied the principle of parity to dismiss the present appeal.
  • The present two-page order does not independently undertake an extensive fresh analysis of every substantive question relating to refund of Education Cess and Secondary & Higher Education Cess.
  • The order 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 the CESTAT had directed refund.
  • The precise legal effect of the judgment should be understood in the context of the earlier Coordinate Bench decision dated 23 May 2022 and the specific factual and procedural setting of the appeal.

This clarification is important to avoid overstating the ratio of the short disposal order beyond what the High Court expressly decided.

Sections Involved

Section 35G of the Central Excise Act, 1944 — The provision expressly referred to in the judgment under which the Commissioner filed the appeal before the High Court.

Education Cess and Secondary & Higher Education Cess — The refund of these cesses formed the substantive subject matter of the CESTAT orders challenged by the Revenue.

Important drafting clarification: The uploaded judgment expressly mentions Section 35G. It does not specify, in this short order, separate charging or exemption-notification provisions governing the cesses. Accordingly, additional statutory sections should not be inserted without support from the underlying CESTAT order or the earlier Coordinate Bench judgment.


Link to Download the Order-https://mytaxexpert.co.in/uploads/1783401762_1334compressed.pdf

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