The Jammu and Kashmir and Ladakh High Court dismissed appeal filed with delay of 1488 days and upheld the ruling that no recovery of refunded cess amount by the Revenue Department.
The appeal by the Commissioner of Central GST & Central Excise (J&K) Jammu filed under Section 35 G of the Central Excise Act, 1944 against the final order passed by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) Chandigarh, is delayed by 1488 days. Hence, a separate application seeking condonation of delay has been filed.
The counsel for the appellant/applicant fairly submitted that the similar issue had arisen in an appeal bearing CEA No. 10/2020, wherein also the appellant/applicant had sought condonation of delay on similar grounds as have been urged in this application but the Division Bench of this Court did not accept the application and dismissed the appeal as barred by limitation.
By virtue of appeal bearing CEA No. 10/2020, about 700 appeals have been filed by the Commissioner, CGST and Central Excise Jammu and Kashmir, Jammu under Section 35 G of the Central Excise Act, 1944, against the orders of different dates passed by the CESTAT, Chandigarh, setting aside the orders passed by the Commissioner (Appeals) and the Adjudicating Authority and directing for the refund of the Education Cess and Secondary and Higher Education Cess to the assessee in view of the decision of the Apex Court in M/s SRD Nutrients Pvt. Ltd. Vs. Commissioner of Central Excise, Guwahati.
In Commissioner of CGST and Central Excise (J&K) versus M/s Saraswati Agro Chemicals Pvt. Ltd, it was held by the Supreme Court that “since the assessee has been held entitled to the refund of the Educational cess and Secondary & Higher Educational cess on the basis of a judgment and order of the Supreme Court in case SRD Nutrients which was in vogue at the relevant time, the appellants are not entitled to make recovery of the said refunded amount on the basis of the subsequent decision of the Supreme Court rendered in the case of Unicorn Industries”.
A Division Bench of the High Court comprising Chief Justice N Kotiswar Singh and Justice Wasim Sadiq Nargal observed that “In view of the above, what has been said by the Division Bench of this Court in order dated 23.05.2022 passed in CEA No. 10/2020 and also upheld by the Supreme Court, same applies on all counts to the application on hand. Accordingly, the appeal bearing No. CEA No. 117/2023 is dismissed along with connected applications(s) being barred by limitation.”
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