Refund of Educational Cess and Secondary & Higher Educational Cess: J&K HC dismisses Appeal by GST Dept filed with Delay of 1359 days [Read Order]

The Jammu and Kashmir and Ladakh High Court dismissed appeal filed by the GST Department with a delay of 1359 days in the matter of refund of educational cess and secondary & higher educational cess.

The appeal was filed by the by the Commissioner of Central GST and 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 1359 days.

The counsel for the appellant contended that the similar issue had arisen in an appeal bearing CEA No. 10/2020, wherein 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 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 the Special Leave Petition (Civil), titled as ‘Commissioner of CGST and Central Excise (J&K) versus M/s Saraswati Agro Chemicals Pvt. Ltd, the Supreme Court while dismissing the Special Leave Petition noted that “The High Court has stated that the decision in SRD Nutrients (P) Limited had attained finality and was binding on the parties thereto. Therefore, the subsequent decision of this Court overruling SRD Nutrients (P) Limited in the case of M/s Unicorn Industries cannot have a bearing on past decisions which had attained finality although they had followed SRD Nutrients (P) Limited, which was subsequently overruled in M/s Unicorn Industries. Otherwise, a pandora’s box would be opened and there would be no end to litigation, which is against public policy.”

The High Court further made the observation that since the assessee has been held entitled to the refund of the educational cess and secondary and 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.”

To Read the full text of the Order CLICK HERE

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