Page 239 - ELT_1st August 2020_Vol 373_Part 3

2020 ] COMMR. OF CUS. (IMPORT), NHAVA SHEVA v. VODAFONE ESSAR GUJARAT LTD. 421

2. Heard the parties.
3. Considering the fact that the issue whether the appellants are enti-
tled to refund/self-credit of Education Cess/Higher Education cess paid by them
has been settled by the Hon’ble Apex Court in the case of M/s. SRD Nutrients Pvt.
Limited v. CCE, Guwahati - 2017 (355) E.L.T. 481 (S.C.), wherein it has been held
that Education Cess/Higher Education Cess is continuation of duty paid by the
assessee. If the assessee is entitled to refund of duty paid through PLA, then for
the Education Cess/Higher Education Cess also, the assessee is entitled to claim
refund/self-credit. Therefore, we hold that the appellants are entitled to claim
refund/self-credit of Education Cess/Higher Education paid by them through
PLA.
4. With regard to the issue that, in terms of Notification Nos. 19/2008-
C.E., dated 27-3-2008 and 34/2008-C.E., dated 10-6-2008, whether the appellants
are entitled to claim refund/self-credit as restricted by these notifications or not.
After hearing the parties, we find that the notifications in question have
been examined by the Hon’ble J & K High Court in the case of Reckit Benckiser v.
UOI - 2011 (269) E.L.T. 194 (J&K), wherein the Hon’ble High Court quashed the
notifications in question. Therefore, in terms of Notification No. 56/2002-C.E.,
dated 14-11-2002, the appellants are entitled to claim refund/self-credit of duty
paid through PLA, relying on the decision of this Tribunal in the case of M/s. Bio-
stadt India Limited & Others vide Final Order No. 61350-61411/2018, dated 14-3-
2018.
5. In view of the above, we hold that the refund/self-credit cannot be
restricted in terms of Notification No. 19/2008-C.E., dated 27-3-2008 and
34/2008-C.E., dated 10-6-2008 and the appellants are entitled to claim re-
fund/self-credit of duty paid through PLA, in terms of Notification No. 56/2002-
C.E., dated 14-11-2002. It is made clear that other than these two issues, no other
issue is pressed in these appeals.
6. With these terms, appeals are allowed.
(Dictated and Operative part pronounced in the Court)
_______

2020 (373) E.L.T. 421 (Tri. - Mumbai)
IN THE CESTAT, WEST ZONAL BENCH, MUMBAI
[COURT NO. I]
Dr. D.M. Misra, Member (J) and Shri S. Srivastava, Member (T)
COMMR. OF CUS. (IMPORT), NHAVA SHEVA
Versus
VODAFONE ESSAR GUJARAT LTD.
Final Order Nos. A/88216-88248/2018-WZB, dated 9-10-2018 in Appeal Nos.
C/688/2008, 126, 48-55/2010, 291-295/2011, 372-378, 1093 & 1103/2012
1
Optical Fiber Cable - Classification of - On reference, Larger Bench of
Tribunal vide its order in 2018 (360) E.L.T. A193 (Tri. - LB) has already decided
________________________________________________________________________
1 Appeal against this order was admitted for consideration by Supreme Court in 2020 (373)
E.L.T. A93 (S.C.).
EXCISE LAW TIMES  1st August 2020  239