Facts of the Case

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

The dispute formed part of a batch of similar matters in which 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 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 recorded that the earlier batch of appeals filed by the Revenue, 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.

Issues Involved

The principal issues arising in the matter were:

  1. Whether the Revenue’s appeal under Section 35G of the Central Excise Act, 1994 against the CESTAT order concerning refund of Education Cess and Secondary & Higher Education Cess warranted separate consideration.
  2. Whether the present appeal was materially distinguishable from the earlier batch of appeals already decided by the Coordinate Bench on 23 May 2022.
  3. Whether, in view of almost identical grounds and an already concluded precedent involving similar orders, the High Court should maintain parity and dismiss the present appeal on the same terms and conditions.

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 a CESTAT order similar to those involved in the earlier batch of appeals. Those Tribunal orders had set aside the decisions of the Commissioner (Appeals) and the Adjudicating Authority and had directed refund of Education Cess and Secondary & Higher Education Cess to the assessee in view of the Supreme Court decision in M/s SRD Nutrients Pvt. Ltd. vs Commissioner of Central Excise, Guwahati.

The High Court specifically noted that the instant appeal raised almost identical grounds to those already dealt with by the Coordinate Bench in its judgment dated 23 May 2022. The short order does not separately reproduce any further detailed submissions of the appellant beyond the nature of the challenge recorded by the Court.

Respondent’s Arguments

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

The judgment records that none appeared for the respondent. Therefore, no separate oral arguments or detailed respondent submissions are recorded in the order. The Court decided the appeal after examining its contents and comparing the challenge with the earlier batch of appeals already adjudicated by the Coordinate Bench.

Court Order / Findings

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

  • the appeal challenged a similar order to those involved in the earlier batch of appeals;
  • the challenge was based on almost identical grounds;
  • those grounds had already been dealt with by the Coordinate Bench while passing the judgment dated 23 May 2022; and
  • parity therefore required the present appeal 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 ordered that any interim direction(s) subsisting as on the date of judgment would stand vacated. The operative conclusion appears on page 2 of the uploaded order.

Important Clarification

This judgment is significant for its application of judicial parity and consistency. The High Court did not undertake a fresh, detailed adjudication of the underlying refund controversy because it found that the present appeal challenged a similar order on almost identical grounds that had already been considered and decided by a Coordinate Bench.

A further important clarification is that the present two-page judgment itself does not independently set out an elaborate fresh ruling on every substantive aspect of refund entitlement. Instead, it dismisses the appeal by expressly following the earlier Coordinate Bench judgment dated 23 May 2022. Therefore, the precise operative scope of the dismissal must be understood together with the terms and conditions laid down in that earlier judgment.

It is also material that the Supreme Court decision in M/s SRD Nutrients Pvt. Ltd. vs Commissioner of Central Excise, Guwahati, 2017 (335) ELT 481 (SC) is mentioned in the judgment as the authority in view of which CESTAT had directed refund of Education Cess and Secondary & Higher Education Cess. The High Court’s present order records that background and dismisses the Revenue appeal on parity with the earlier batch.

Sections Involved

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

Subject Matter: Refund of Education Cess and Secondary & Higher Education Cess, CESTAT refund direction, challenge by Revenue, application of earlier Coordinate Bench decision, and dismissal of appeal to maintain parity.

 Link to Download the Order-https://mytaxexpert.co.in/uploads/1783403919_1347compressed.pdf

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