The duty exemption notifications cover the education cess and higher education cess imposed by the Finance Acts of 2004 and 2007, as established by previous judgments.

ORDER :

1. This application is filed to modify the judgment dated 10.11.2017 rendered by this Court in Civil Appeal Nos. 2781-2790 of 2010.

2. Various notifications were issued by the Government of India for refund of excise duty paid on goods manufactured and cleared from units located in the specified States, in order to encourage business community to set up manufacturing units in industrially backward areas. The said notifications are area-based one. The said notifications allowed refund of excise duty leviable under the Act, equivalent to the amount of duty paid by the manufacturer other than the amount of duty paid by utilization of CENVAT credit. Such notifications were amended subsequently restricting the refund of duty only to the duty payable on value addition undertaken in the manufacture of the goods by such units. As per the notifications manufacturers were required to pay the duty initially at the time of clearance and thereafter claim the refund thereof.

3. The education cess, the secondary education cess and the higher education cess were imposed vide Finance Acts of 2004 and 2007, which were also collected from the manufacturers who had set up their units in the areas covered by notifications, along with the excise duty. However while refunding the excise duty, the cess amount collected was not refunded. The assessees challenged the orders denying the refund of education cess and higher education cess. The proceedings culminated in these appeals before this Court, which raised a dispute as to whether the education cess and higher education cess which were paid along with the excise duty was also liable to be refunded along with the central excise duty in terms of exemption notifications.

4. In the civil appeals after hearing was concluded written submissions were also filed on behalf of the applicant on 23.11.2017, with the permission of the Court. The applicant herein relied on the decision of this Court rendered in the case of Union of India and Others vs. Modi Rubber Ltd. (1986) 4 SCC 66. It is the case of the applicant that though written submissions were filed by placing reliance on the earlier judgment of this Court in the case of Modi Rubber Ltd. (supra) written submissions and the judgment relied on were not considered while disposing of the appeals titled as M/s. SRD Nutrients Private Limited vs. Commissioner of Central Excise, Guwahati, (2018) 1 SCC 105. By the aforesaid judgment this court has allowed the appeals holding that the appellants were entitled to refund of education cess and higher education cess which were paid along with the excise duty. Review Petition (C) Nos. 2477-2486 of 2018 (Diary No. 6714/2018) filed by the applicant herein also ended in dismissal. Subsequently in Civil Appeal No. 9237 of 2018, titled as M/s. Unicorn Industries vs. Union of India and Others, (2020) 3 SCC 492 with reference to very same issue this Court has held that the duty on NCCD, education cess, secondary and higher education cess are in the nature of additional excise duty as such same is not covered by the notification dated 09.09.2003, particularly when there is no reference to notification issued under the Finance Acts. In the case of M/s. Unicorn Industries (supra) this Court has relied upon the decision of a three-Judge Bench of this Court rendered in the case of Modi Rubber Ltd. (supra). Subsequently same was followed by another three-Judge Bench of this Court in the case of Rita Textiles Pvt. Ltd. vs. Union of India, 1986 Supp. SCC 557. In the judgment in the case of Unicorn Industries (supra) a three-Judge Bench of this Court has held that the judgment in the case of M/s. SRD Nutrients Private Limited (supra) and in the case of Bajaj Auto Ltd. vs. Union of India, (2019) 19 SCC 801 were rendered by not considering the previous binding decision of a three-Judge Bench in the case of Modi Rubber Ltd. (supra) and Rita Textiles Pvt. Ltd. (supra), thus held they are clearly per incuriam. In the case of M/s. Uni