Per Justice R.M.S. Khandeparkar : In all these appeals common questions of law and facts arise and, therefore, they were heard together and are being disposed of by this common order, in terms of direction issued on 8.7.2009 in Appeal No. 342/2009 and other connected matters.

2. In all these appeals the point for consideration which arises is whether the education cess and higher education cess which was paid alongwith the excise duty in terms of exemption Notification No. 56/02 dated 14.11.2002 are also refundable alongwith the excise duty paid under the said exemption notification.

3. Learned Representatives for the Department and the learned Advocates as well as Chartered Accountant appearing for the assessees were heard at length on the above issue in all these matters.

4. Few facts relevant for the decision in all these matters on the above issue need to be noted. In exercise of powers conferred under Section 5A(1) of the Central Excise Act alongwith two other enactments, a notification came to be issued being Notification No. 56/2002 with reference to the area specified thereunder and the assessees submitted their declaration in accordance with the requirement of the said notification to avail the benefit thereunder in relation to the manufacture of the products in their factories located within the area specified under the said notification. The assessees were permitted to avail the benefit under the said notification either by way of payment of utilizing cenvat credit or by way of duty in cash or in PLA account. Each of the assessees availed such benefits at his option in terms of the said notification. Alongwith the payment of duty either in cash or by depositing the amount in PLA account, the assessees also paid education and higher education cess equivalent to 2% and 1% respectively of the aggregate of all the duties levied and collected in the above form. Thereafter in terms of the said notification, the assessees approached the authorities for refund of amount of duty paid either in cash or by way of deposit in the PLA account, and alongwith that also claimed the refund of the amount of education and higher education cess paid by them with reference to the duties paid under the notification. The Assistant Commissioner, who heard the matters in this regard, allowed refund of the excise duties paid in cash or through PLA account, but rejected the request for refund of the education or the higher education cess. Being aggrieved by the rejection of the claim for refund of the education and higher education cess, the assessees carried the matter in appeal before the Commissioner (Appeals) who by his orders allowed the claim of the assessees for refund of the education and higher education cess. It is on this count, the department has preferred these appeals before this Tribunal.

5. The Notification No. 56/2002 under which the assessees claim for refund of the education and higher education cess which has been granted by the Commissioner (Appeals) and which is disputed by the Department reads thus-

"Jammu, Kashmir and Udhampur — Exemption to units located in Industrial Growth Centre, Industrial Infrastructure Development Centre or Export Promotion Industrial Park or Industrial Estate or Industrial Area or Commercial Estate or Scheme Area.

In exercise of the powers conferred by sub-section (1) of section 5A of the Central Excise Act, 1944 (1 of 1944), read with sub-section (3) of section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957) and sub-section (3) of section 3 of the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the goods specified in the First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), other than goods specified in Annexure I appended hereto, and cleared from a unit located in the Indus