Calcutta High Court
Commissioner Of Cgst And Cx vs M/S. Diamond Beverages Pvt. Ltd on 7 May, 2025
Author: T.S Sivagnanam
Bench: T.S Sivagnanam
1
OD - 4
IN THE HIGH COURT AT CALCUTTA
Special Jurisdiction [Central Excise]
ORIGINAL SIDE
CEXA/24/2024
IA NO: GA/2/2024
COMMISSIONER OF CGST AND CX, KOLKATA SOUTH COMMISSIONERATE
VS
M/S. DIAMOND BEVERAGES PVT. LTD.
BEFORE :
THE HON'BLE CHIEF JUSTICE T.S SIVAGNANAM
And
THE HON'BLE JUSTICE CHAITALI CHATTERJEE (DAS)
Date : 7th May, 2025
Appearance :
Mr. Bhaskar Prasad Banerjee, Adv.
Mr. Abhradip Maity, Adv.
..for the appellant.
Mr. Ankit Kanodia, Adv.
Ms. Megha Agarwal, Adv.
Mr. Piyush Agarwal, Adv.
..for respondent.
The Court : This appeal has been filed by the revenue under
Section 35G of the Central Excise Act, 1944 challenging the
order passed by the Customs, Central Excise and Service Tax
Appellate Tribunal, East Zonal Bench, Kolkata, (Tribunal) in
Excise Appeal No.75938/2022.
The revenue has raised the following substantial question
of law for consideration :
"Whether the respondent is entitled to avail Cenvat Credit
on Sugar Cess under Rule 3 of the Cenvat Credit Rules, 2004?"
The said appeal was filed by the assessee challenging the
order-in-appeal dated 20th October, 2022 passed by the
Commissioner, CGST & CX, Appeals - I, Kolkata by which the
appellate authority held that the assessee is not entitled to
refund of Cenvat credit on sugar cess. The learned Tribunal
after taking note of the facts of the case and the submissions
made before it held that the only issue to be decided whether
the appellate authority was correct in rejecting the refund
application of the assessee by holding that the earlier order of
the Tribunal vide final order dated 7.8.2019 has been appealed
against by the department and the same has not attained
finality. The said appeal [CEXA/9/2020] filed by the revenue
admitted on 4th July, 2024 was heard by us and by judgment and
order dated 7th May, 2025 the appeal filed by the revenue was
dismissed. The operative portion of the judgment and order reads
as under :
"***** ***** **** ***** ****** *******
Ultimately, the Court held that Section 3 of the Act
provides for levy and collection as a cess for the purpose
of Sugar Development Fund Act, 1982, a duty of excise on
all sugar produced by any sugar factory in India and,
therefore, the cess leviable and collected is at the stage
of production of sugar in the sugar factory. Because it is
a tax on production, it is described as a duty of excise.
In light of the above decision, the view taken by the
learned Tribunal was perfectly right and the learned
Tribunal partly set aside the order passed by the
commissioner and granted consequential relief, namely, the
refund claim by the assessee.
For the above reasons, the appeal filed by the revenue is
dismissed and the substantial questions of law are answered
against the revenue."
In light of the above legal position, the assessee is
entitled to succeed and the revenue has to necessarily fail.
For the above reasons, the appeal filed by the revenue is
dismissed and the substantial question of law suggested is
answered against the revenue.
(T.S SIVAGNANAM)
CHIEF JUSTICE
(CHAITALI CHATTERJEE (DAS), J.)
S.Das/
AR[CR]
