Per K. S. Radahakrishan, CJ:

1. These petitions have been preferred by the Commissioner of Customs and Central Excise under section 35G of the Central Excise Act, 1944, aggrieved by the orders passed by the Customs, Excise and Service Tax Appellate Tribunal, Circuit Bench, Srinagar which ordered that the exempted amount of duty was required to be refunded for operationalising the exemption; education cess which was in the nature of piggy back duty on the excise duties under the Central Excise Act, 1944, Additional Duties of Excise (Goods of Special Importance) Act, 1957 and Additional Duties of Excise (Textile and Textile Articles)Act, 1978, was also required to be refunded because it was not at all leviable in view of the entitlement to exemption worked out under paragraph 2 of the Notification. The Tribunal set-aside the orders passed by the Commissioner of Appeals and allowed the appeals accordingly. Aggrieved by the same, the Commissioner of Customs and Central Excise has preferred these applications raising the following question of law:

"Whether Education cess levied and collected under section 91 of the Finance Act, 2004 can be considered as a duty of excise for the propose of

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