Dismissed¶34

Commissioner of Cgst and Cx, Kolkata South Commissionerate v. M/S. Diamond Beverages Pvt. Ltd.

Calcutta HC7 May 2025CEXA/24/2024

Case brief

AI extract

What is this about?

Cenvat Credit on Sugar Cess; Rule 3, Cenvat Credit Rules, 2004; Section 3, Sugar Development Fund Act, 1982; duty of excise on sugar leviable at stage of production; refund of Cenvat credit on sugar cess; Section 35G, Central Excise Act, 1944 appeal by revenue; CESTAT East Zonal Bench Kolkata, Excise Appeal No.75938/2022; Commissioner, CGST & CX, Appeals – I, Kolkata order-in-appeal dated 20.10.2022 rejecting refund; Tribunal final order dated 7.8.2019 under departmental appeal, not attained finality; companion appeal CEXA/9/2020 admitted 04.07.2024 and dismissed 07.05.2025; substantial question of law answered against revenue; assessee M/s. Diamond Beverages Pvt. Ltd.; Calcutta High Court, Original Side, Special Jurisdiction [Central Excise].

What did the court decide?

No relief to the revenue-appellant; the substantial question of law is answered against the revenue and the respondent-assessee is held entitled to succeed on its claim for refund of Cenvat credit on sugar cess.

Commissioner, CGST & CX, Appeals – I, Kolkata by which the appellate authority held that the assessee is not entitled to refund of Cenvat credit on sugar cess. The learned Tribunal after taking note of the facts of the case and the submissions made before it held that the only issue to be decided whether the appellate authority was correct in rejecting the refund application of the assessee by holding that the earlier order of the Tribunal vide final order dated 7.8.2019 has been appealed against by the department and the same has not attained finality. The said appeal [CEXA/9/2020] filed by the revenue admitted on 4th July, 2024 was heard by us and by judgment and order dated 7th May, 2025 the appeal filed by the revenue was dismissed. The operative portion of the judgment and order reads as under :

Ultimately, the Court held that Section 3 of the Act provides for levy and collection as a cess for the purpose of Sugar Development Fund Act, 1982, a duty of excise on all sugar produced by any sugar factory in India and, therefore, the cess leviable and collected is at the stage of production of sugar in the sugar factory. Because it is a tax on production, it is described as a duty of excise.

In light of the above decision, the view taken by the learned Tribunal was perfectly right and the learned Tribunal partly set aside the order passed by the commissioner and granted consequential relief, namely, the refund claim by the assessee.

Commissioner of Cgst and Cx, Kolkata South Commissionerate v. M/S. Diamond Beverages Pvt. Ltd.

Case brief

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What did the court decide?

Commissioner of Cgst and Cx, Kolkata South Commissionerate v. M/S. Diamond Beverages Pvt. Ltd.

Case brief

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What did the court decide?

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What the court decided

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