Allowed

Ganesh Metcoke Industries v. Union of India and 5 Ors.

Gauhati HC1 Mar 2019WP(C)/1391/2019

Case brief

AI extract

What is this about?

This order directed State authorities to refund education cess, secondary education cess, and higher education cess collected from an industrial unit entitled to 100% CENVAT refund under the North-East Industrial Policy. The court relied on a prior judgment in an identical case.

What did the court decide?

Directing Respondents Nos. 4, 5, and 6 to refund the education cess, secondary and higher education cess within 3 months.

Ganesh Metcoke Industries Vs Union of India and 5 Ors. — GST and Indirect Tax | Gauhati HC (2019)

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Page No.# 1/3

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GAHC010232842018

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 1391/2019

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1:GANESH METCOKE INDUSTRIES

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A PARTNERSHIP FIRM REGISTERED UNDER THE PROVISIONS OF PARTNERSHIP ACT, 1932 AND HAVING ITS PRINCIPAL PLACE OF BUSINESS SITUATED AT HATKHOWAPARA, P.O. AZARA, DIST. KAMRUP, GUWAHATI, ASSAM AND ITS INDUSTRIAL UNIT SITUATED AT THE SAME PLACE.

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VERSUS

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1:UNION OF INDIA AND 5 ORS.

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REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI.

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2:THE UNDER-SECRETARY TO THE GOVT. OF INDIA MINISTRY OF FINANCE (DEPARTMENT OF REVENUE) NEW DELHI.

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3:THE SECRTARY TO THE GOVT. OF INDIA MINISTRY OF COMMERCE AND INDUSTRY UDYOG BHAWAN NEW DELHI.

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4:THE COMMISSIONER OF CENTRAL GST (EARLIER COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX) G.S. ROAD GUWAHATI ASSAM.

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5:THE ASSISTANT COMMISSIONER

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GST (EARLIER COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX) OFFICE OF THE ASSISTANT COMMISSIONER OF CENTRAL EXCISE GUWAHATI ASSAM.

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Page No.# 2/3

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6:THE SUPERINTENDENT

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GST (EARLIER SUPERINTENDENT OF CENTRAL EXCISE AND SERVICE TAX)

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TECH GUWAHATI ASSAM

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Advocate for the Petitioner : MS. M L GOPE

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Advocate for the Respondent : ASSTT.S.G.I.

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BEFORE HONOURABLE MR. JUSTICE UJJAL BHUYAN

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ORDER

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Date : 01-03-2019

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Heard Ms N Hawelia, learned counsel for the petitioner and Mr S C Keyal, learned Additional Solicitor General of India.

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By filing this petition under Article 226 of the Constitution of India, petitioner seeks a direction to the respondents to refund education cess as well as secondary and higher education cess collected from the petitioner for the period from July, 2004 to January 2015, in terms of notification No.20/2007.

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Case of the petitioner is that it is an industrial unit located in the State of Assam and is entitled to certain benefits like exemption from payment of central excise duty by way of 100 % refund of the excise duty paid after adjusting CENVAT credited for a period of 10 years under North-East Industrial Policy, 2007 and notification of the Central Government No. 20/2017 dated 24.04.2007. However, education cess as well as secondary and higher education cess were levied and realised from the petitioner. Contention of the petitioner is that since education cess etc. are imposed on excise duty, the same would not be leviable as excise duty itself is exempted under the industrial policy.

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It is submitted at the bar that in an identical case, i.e., WP(C) No. 5760 of 2018 ( Kamakhya Plastics Pvt. Ltd –Vs- Union of India); decided on 27.08.2018, this Court had directed the respondents to refund the education cess including secondary and higher education cess paid by the petitioner for the period during which those were realised. Therefore, learned counsel for the petitioner prays for a similar order.

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Mr Keyal, learned Assistant Solicitor General of India submits that a decision has been taken by the competent authority in the Ministry of Finance, Government of India, to refund such cess irrespective of whether the assessee has approached the High Court or not.

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In view of above, respondents, more particularly, respondent Nos. 4, 5 and 6 are directed to refund the education cess including secondary and higher education cess collected from the petitioner during the said period to the petitioner within a period of 3 (three) months from the date of receipt of a certified copy of this order.

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Writ petition is disposed of.

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JUDGE

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Comparing Assistant

Ganesh Metcoke Industries v. Union of India and 5 Ors.

Case brief

What is this about?

What did the court decide?

Ganesh Metcoke Industries v. Union of India and 5 Ors.

Case brief

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