SUN PHARMACEUTICAL INDUSTRIES Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) THESE two appeals are directed against the denial of refund to the appellant in terms of Notification No. 56 of 2002. It is not in dispute that the unit was eligible for the said exemption, as it is located in the specified area of Jammu.

(2.) THE appellant filed claims for refund of duty paid in cash during the months of September 2005 and October 2005. Out of amounts claimed, Revenue denied the refund of about Rs. 10 lakhs for the month of September 2005 and about Rs. 9 lakhs for the month of October 2005. These amounts were also cash payments of basic excise duty.

(3.) THE reason given in the original order for the denial of refund is that the appellant paid part of the education cess (equivalent to the refund denied) from the Cenvat credit on inputs accumulated under basic excise duty. It has been held that such payment is not permissible under Sub -rule 7(b) of Rule 3 of Cenvat Credit Rules, 2004. In the appeal proceeding, Commissioner (Appeals) confirmed the finding of the original authority. An additional ground was taken that the exemption notification permitted exemption of "duty of excise or additional duty of excise" and education cess is not duty of excise.