Facts of the Case

The Commissioner of Central GST and Central Excise, Jammu and Kashmir, Jammu filed the present appeal before the High Court under Section 35G of the Central Excise Act, 1944 against an order passed by the Customs, Excise and Service Tax Appellate Tribunal, Chandigarh (“CESTAT”).

As recorded on page 1 of the judgment, a batch of similar appeals had earlier been filed by the Commissioner against orders passed on different dates by CESTAT. Through those orders, 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.

The CESTAT orders referred to by the High Court were based upon 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 earlier batch of appeals, together with applications seeking condonation of delay, had CEA No. 10/2022 as the lead case. The Coordinate Bench of the High Court dismissed that batch by judgment dated 23 May 2022.

The present appeal, CEA No. 277/2022, raised a challenge to a similar order on almost identical grounds. The High Court therefore examined whether any different treatment was warranted when the same grounds had already been 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, 1944 against the CESTAT order concerning refund of Education Cess and Secondary & Higher Education Cess required separate adjudication when an earlier batch of appeals involving almost identical grounds had already been dismissed.
  2. Whether the High Court should maintain parity with its Coordinate Bench judgment dated 23 May 2022.
  3. Whether the challenge to the CESTAT order could survive when the grounds raised were almost identical to those already considered and dealt with in the earlier batch of appeals.
  4. What should be the consequence for any subsisting interim directions upon dismissal of the appeal.

Appellant’s Arguments

The appellant, 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 CESTAT order of the same or similar nature as the orders involved in the earlier batch of appeals. Those CESTAT orders 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 High Court specifically recorded that the instant appeal challenged a similar order on almost identical grounds to those raised in the earlier batch.

Important accuracy note: The short two-page judgment does not separately reproduce or elaborate any additional detailed propositions advanced by the appellant beyond recording the nature of the challenge and its similarity with the earlier batch. Accordingly, no further arguments should be attributed to the Revenue beyond what the judgment itself records.

Respondent’s Arguments

The respondent was M/s Nitin Enterprises, Kathua, J&K.

The cause-title on page 1 expressly records “None” under the appearance for the respondent. Therefore, the judgment does not record any oral submissions or separate arguments advanced on behalf of the respondent at the hearing.

Important accuracy note: Since no respondent-side arguments are reproduced in the judgment, no independent submissions should be inferred or attributed to the respondent.

Court’s Findings

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

  • the order under challenge was similar to the order forming the subject matter of the earlier batch of appeals;
  • the present challenge was raised on almost identical grounds;
  • those grounds had already been dealt with by the Coordinate Bench in its judgment dated 23 May 2022; and
  • parity in judicial treatment therefore required the present appeal to receive the same outcome.

As specifically stated on page 2 of the judgment, the Court considered it appropriate, “with a view to maintain parity,” to dismiss the appeal on the same terms and conditions as laid down in the Coordinate Bench judgment dated 23 May 2022.

The decisive basis of the order was therefore the prior adjudication of substantially identical grounds by a Coordinate Bench and the need to maintain parity.

Court Order

The High Court ordered as follows:

  • CEA No. 277/2022 was dismissed.
  • The dismissal was on the same terms and conditions as laid down in the Coordinate Bench judgment dated 23 May 2022.
  • Any interim direction(s) subsisting as on the date of judgment were vacated.

Thus, the Revenue’s appeal against the similar CESTAT order did not succeed.

Important Clarification

This judgment should be read with precision because it is a short parity-based disposal order.

First, the High Court did not undertake a fresh, elaborate discussion of the entire substantive law governing refund of Education Cess and Secondary & Higher Education Cess. Instead, it found that the present appeal involved a similar order and almost identical grounds already dealt with by the Coordinate Bench.

Second, the judgment expressly refers to the Supreme Court decision 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 refunds in the relevant matters.

Third, the immediate operative reason for dismissal of the present appeal was the need to maintain parity with the Coordinate Bench judgment dated 23 May 2022.

Fourth, the uploaded judgment does not reproduce the full text, detailed reasoning, case number particulars beyond the lead case reference, or complete terms and conditions of the Coordinate Bench judgment dated 23 May 2022. Therefore, those details should not be invented or expanded beyond the present record.

Fifth, the dismissal of the appeal also resulted in vacation of any subsisting interim directions.

Sections Involved

Section 35G of the Central Excise Act, 1944 – The 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 constitute the substantive levy/refund subject matter referred to in the judgment. The short order does not separately identify specific charging or exemption notification provisions governing these cesses; therefore, no additional statutory section or notification should be attributed without reference to the underlying CESTAT order or earlier Coordinate Bench judgment.

Link to download the order -https://mytaxexpert.co.in/uploads/1783408296_1352compressed.pdf

Disclaimer

This content is shared strictly for general information and knowledge purposes only. Readers should independently verify the information from reliable sources. It is not intended to provide legal, professional, or advisory guidance. The author and the organisation disclaim all liability arising from the use of this content. The material has been prepared with the assistance of AI tools.