IMPORTANT POINTS
(1) Review – Once there is a subsequent judgment overruling an earlier judgment on a point of law, earlier judgment cannot be reopened or reviewed on the basis of a subsequent judgment.
(2) Education Cess – Although exemption from payment of excise duty under a notification is granted, there is no exemption from payment of education cess.

ORDER :

1. Delay condoned.

2. We have heard Mr. N. Venkataraman, learned ASG appearing for the petitioners in extenso. He pointed out that this Court in the case of SRD Nutrients (P) Limited vs. CCE, (2018) 1 SCC 105, gave a ruling contrary to the judgment previously rendered by a three Judge Bench of this Court in the case of Modi Rubber Ltd. and Another vs. Union of India and Others, (1986) 4 SCC 66. In a subsequent decision namely, M/s Unicorn Industries vs. Union of India, (2020) 3 SCC 492, the judgment passed in SRD Nutrients (P) Limited (supra) was overruled and it was held that the exemption from payment of excise duty under a notification granted would not exempt the payment of education cess and secondary education cess. It was also observed in the said judgment that the judgment passed in SRD Nutrients (P) Limited vs. CCE (supra) was per incuriam.

3. Learned ASG during the course of his submissions has brought to our attention an order passed on 27.09.2021 referring the very decision passed in M/s SRD Nutrients (P) Limited (which has been overruled) to a larger Bench having regard to the fact that the said decision was per incuriam inasmuch as it had not considered the earlier judgment of this Court in Modi Rubber Ltd. (supra). Therefore, he submitted that this matter has to be connected with the said matter and the judgment to be passed in line with M/s Unicorn in M/s SRD Nutrients (P) Limited when the Reference is answered would follow in this case also.

4. We have given our anxious consideration to the submissions made by the learned ASG in light of what has been stated by the High Court in paragraph ‘74’ of the impugned judgment.

5. In SRD Nutrients (P) Limited (supra) it was held that when payment of Excise Duty is exempt under the Central Excise Act, then the 2% Education Cess and Secondary and Higher Education Cess payable on the aggregate duties of excise will also be exempted. However, later in the case of M/s Unicorn Industries vs. Union of India, (2020) 3 SCC 492, the aforesaid judgment in SRD Nutrients (P) Limited vs. CCE (supra) was overruled and it was held that although the exemption from payment of excise duty under a notification is granted, there is no exemption from payment of education cess. Therefore, the assessee who had paid the excise duty and education cess was not entitled to a refund of the education cess which had been paid. Also where refund had been made pursuant to the judgment in M/s SRD Nutrients (P) Limited, was no longer valid.

6. With regard to the reference order made on 27.09.2021 on a miscellaneous application filed by the Revenue seeking to undo the judgment in M/s SRD Nutrients (P) Limited which was overruled in the subsequent judgment of this Court in M/s Unicorn Industries (supra), the question is whether there was a need at all to refer the matter to a larger Bench. This is for two reasons: firstly, such an application could not have been filed after a review petition in M/s SRD Nutrients (P) Limited had been dismissed by this Court. Thus, in substance, by filing the miscellaneous application the revenue was seeking a second review of the said judgment which is impermissible in law (Order XLVII Rule 9 CPC). Secondly, by ignoring the Explanation to Order XLVII Rule 1 of the CPC and the principle that emerges from the same, what is sought to be contended by learned ASG is that if a judgment is overruled by this Court by a subsequent judgment, then the overruled judgment will have to be reopened and on reopening the said judgment will have to be brought in line with the subsequent judgment which had overruled it. This is not permissible in law for two reasons: firstly, there has to be finality in litigation and that is in the interest of State. Secondly, a person cannot be vexed twice. This is epitomized by the following maxims:

(i) Nemo debet bis vexari pro una et eadem causa (No man should be vexed twice for the same cause).

(ii) Interest reipublicae ut sit finis litium (It is in th