Facts of the Case

The Commissioner CGST and Central Excise (J&K), Jammu filed an appeal before the High Court under Section 35G of the Central Excise Act, 1994 against an order involving the respondent, Zuventus Healthcare Ltd, situated at SIDCO Industrial Complex, Bari Brahmana, Jammu.

The Court noted that a batch of similar appeals had earlier been filed by the Commissioner, Central GST and Central Excise (Jammu and Kashmir), Jammu against orders passed on different dates by the Customs, Excise and Service Tax Appellate Tribunal, Chandigarh (CESTAT).

In those matters, 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 assessees, relying upon the Supreme Court decision in M/s SRD Nutrients Pvt. Ltd. vs Commissioner of Central Excise, Guwahati, reported as 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 and was dismissed by a Coordinate Bench of the High Court through judgment dated 23.05.2022.

Upon examining the present appeal, the High Court found that it challenged a similar order on almost identical grounds that had already been considered and dealt with in the earlier batch judgment.

Issues Involved

The principal issues arising from the order were:

  1. Whether the Revenue’s appeal under Section 35G of the Central Excise Act, 1994 against the CESTAT order warranted separate consideration when almost identical grounds had already been decided by a Coordinate Bench.
  2. Whether the dispute concerning refund of Education Cess and Secondary & Higher Education Cess was materially distinguishable from the earlier batch of appeals dismissed on 23.05.2022.
  3. Whether the High Court should maintain judicial parity and consistency by applying the same terms and conditions as laid down in the Coordinate Bench judgment dated 23.05.2022.
  4. Whether any subsisting interim directions should continue after dismissal of the Revenue’s appeal.

Petitioner/Appellant’s Arguments

The appellant, Commissioner CGST and Central Excise (J&K), Jammu, challenged the relevant order through an appeal filed under Section 35G of the Central Excise Act, 1994.

From the High Court’s order, the Revenue’s challenge was found to be similar to the challenges raised in the earlier batch of appeals. Those appeals concerned CESTAT orders setting aside decisions of the Commissioner (Appeals) and Adjudicating Authority and directing refund of Education Cess and Secondary & Higher Education Cess to assessees.

The present challenge was also raised on almost identical grounds to those already dealt with by the Coordinate Bench in its judgment dated 23.05.2022.

The short order does not separately reproduce detailed propositions or arguments advanced by the Revenue beyond recording the similarity of the challenge with the previously decided batch. Therefore, no additional argument should be attributed to the appellant beyond what is expressly reflected in the judicial order.

Respondent’s Arguments

The order records that none appeared for the respondent, Zuventus Healthcare Ltd.

Accordingly, the judgment does not record any independent oral submissions made on behalf of the respondent in the present appeal.

Nevertheless, the underlying controversy related to CESTAT’s treatment of refund claims concerning Education Cess and Secondary & Higher Education Cess in light of the Supreme Court ruling in M/s SRD Nutrients Pvt. Ltd. vs Commissioner of Central Excise, Guwahati.

For accuracy, it is important to clarify that the High Court’s order does not reproduce any separate written or oral arguments of the respondent and the appeal was decided after the Court examined its contents and compared the controversy with the earlier batch already adjudicated by the Coordinate Bench.

Court Order / Findings

The High Court dismissed the Revenue’s appeal.

The Court recorded the following material findings:

First, it examined the contents of the instant appeal and found that the challenge was directed against a similar order to those involved in the earlier batch of appeals.

Second, the Court found that the present appeal had been brought on almost identical grounds already dealt with by the Coordinate Bench.

Third, the earlier batch, with CEA No. 10/2022 as the lead case, had already been dismissed by judgment dated 23.05.2022.

Fourth, with a view to maintaining parity, the High Court dismissed the present appeal on the same terms and conditions as those laid down in the Coordinate Bench judgment dated 23.05.2022.

Fifth, the Court expressly ordered that any interim direction(s) subsisting as on the date of the order would stand vacated.

Thus, the Revenue appeal did not succeed, and the Court followed the outcome of the earlier batch involving substantially identical issues and grounds.

Important Clarification

A significant clarification is that the High Court’s order is principally an application of the earlier Coordinate Bench ruling to a materially similar appeal. The Court did not undertake a fresh detailed examination of the substantive cess-refund controversy in this two-page order.

The order should therefore be understood in its correct procedural and precedential context:

  • The appeal was filed under Section 35G of the Central Excise Act, 1994.
  • The underlying controversy involved CESTAT orders directing refund of Education Cess and Secondary & Higher Education Cess.
  • Those CESTAT orders had relied upon the Supreme Court decision in M/s SRD Nutrients Pvt. Ltd. vs Commissioner of Central Excise, Guwahati.
  • An earlier batch of similar Revenue appeals had already been dismissed by the Coordinate Bench on 23.05.2022.
  • The present appeal was dismissed to maintain parity, as its grounds were found to be almost identical.

It is also important not to overstate the scope of this order. The High Court did not independently formulate an elaborate new test for cess refund; rather, it followed the earlier Coordinate Bench judgment in a similar matter.

Sections / Statutory Provisions Involved

  • Section 35G, Central Excise Act, 1944 – Appeal to the High Court from qualifying orders of the Appellate Tribunal, subject to statutory requirements.
  • Education Cess provisions – Relevant to the underlying refund controversy.
  • Secondary & Higher Education Cess provisions – Relevant to the underlying refund controversy.
  • CESTAT appellate framework – Relevant because the Revenue challenged an order of the Customs, Excise and Service Tax Appellate Tribunal, Chandigarh.


Link to download the order  https://mytaxexpert.co.in/uploads/1783328496_1120compressed.pdf

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