IMPORTANT POINT : Appeal – In absence of any sufficient cause for not filing appeal within prescribed period, Court cannot condone delay.

Judgment :

Pankaj Mithal, CJ.

About 700 appeals have been filed by the Commissioner, CGST and Central Excise Jammu and Kashmir, Jammu u/s 35 G of the Central Excise Act, 1944, (for short ‘the Act’) against the orders of different dates passed by the Customs Excise and Service Tax Appellate Tribunal (for short ‘CESTAT’), Chandigarh, setting aside the orders passed by the Commissioner (Appeals) and the Adjudicating Authority and directing for the refund of the Education Cess and Secondary & Higher Education Cess to the assessee in view of the decision of the Apex Court in M/s SRD Nutrients Pvt. Ltd. Vs. Commissioner of Central Excise, Guwahati, 2017 (335) ELT 481 (SC).

2. All appeals except two, i.e., Central Excise Appeal Nos. 09 and 11 of 2020 are reported to be barred by time ranging from 200 to 1100 days.

3. An objection has been raised that not a single appeal is within time and that even the aforesaid two appeals are barred by limitation, if the limitation is properly calculated from the date of the service of the order upon the appellant.

4. The dates on which orders were passed by the CESTAT, the dates of service of those orders upon the appellant and the date of filing of the appeals in each case clearly reveals that almost all the appeals have been preferred beyond time.

5. It may be noted that the period for filing appeal under Section 35G of the Act is 180 days from the date of service of the order.

6. In some cases date of service of the orders is wrongly mentioned and is shown to be the date of service of the subsequent order passed by the CESTAT on the rectification application. Therefore, the limitation in many cases has wrongly been reported by the registry.

7. In all appeals, facts are similar and a common substantial question of law is sought to be raised namely:

‘Whether the assessee is liable to return the Education Cess and Secondary & Higher Education Cess on the changed view of law as subsequently laid down by the Full Bench of the Supreme Court in Unicorn Industries vs Union of India & others (2020) 3 SCC 492, over ruling SRD Nutrients P Ltd vs. CCE, (2018) 1 SCC 105, on the basis of which the aforesaid Cess was refunded to the assessee?.’

8. We cannot straight away jump to answer the above question unless the appellants remove the defect in filing of the appeals by furnishing adequate explanation for getting the delay in filing the appeals condoned.

9. In addition to the above hurdle as per the preliminary objections raised from the side of respondents two other problems arise in dealing with the appeals on merit.

10. The first is whether the appellant can file and maintain the appeals as the tax incidence in each case is less than Rs. One Crore, whereas, under the Circular of the Ministry of Finance (Department of Revenue, Central Board of Indirect Taxes and Customs) New Delhi, dated 22.08.2019, the Government of India has fixed the monetary limit of Rs. One Crore below which appeal cannot be filed in the High Court.

11. The second preliminary objection is whether the appeal under Section 35G of the Act is maintainable before the High Court or it has to be filed directly in Supreme Court under Section 35L of the Act, as it pertains to question having relation to the rate of excise.

12. In dealing with all the above issues whether preliminary, technical or on merits it would be prudent to refer to the brief background where under the question of charging, levy, collection and refund of the Education Cess and Secondary & Higher Education Cess arises.

13. The Government of India with the avowed object of encouraging commercial activity for setting up manufacturing units in industrially backward areas, came out with a policy of granting tax exemptions to the newly setup manufacturing units for a period of 10 years from the date of the commencement of business. One such Notification No. 56/2002-CE dated 14.11.2002 was issued in context with the State of J&K, where under new industrial units were entitled to hundred perc