BALIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THE petitioner has challenged the order of revisional authority annexure 5 dated 31st July 2006 withdrawing the claim to rebate on exports of goods manufactured by the petitioner relating to education cess payable under the Finance Act, 1994 which came into effect w. e. f. 9/7/2004 in terms of Sections 91, 92 and 93 of the said Act of 1994. The petitioner is engaged in the manufacture of yarn, gray fabrics and in getting man made fabrics processed. The applicant has filed refund claim under Rule 18 of the Central Excise Rules, 2002 for claiming rebate on Excise Duty paid during the period from 9/7/2004 to 5/9/2004 including amount of education Cess paid under the aforesaid provisions of Finance Act, 1994 on export of man made processed fabrics. The claim to rebate was sanctioned by learned Deputy Commissioner. Against the order of Deputy Commissioner, Central Excise, an appeal was preferred before the Commissioner (Appeals) under the directions of Commissioner of Central Excise. The Commissioner (Appeals) set aside the Order-in-Original and allowed the appeal of Department by confirming that the Education Cess paid during the period from 9/7/2004 to 5/9/2004 on exported goods was not eligible for rebate and the rebate has been granted by the authority erroneously to the applicant. Aggrieved with the order of Commissioner (Appeals), application for revision was filed before the Central Government. The revisional authority by referring to the Notification no. 19/04 dated 6/9/2004 held that rebate on Education Cess was first granted by aforesaid Notification and that being not retrospective in operation, the petitioner was not entitled to claim rebate on Education Cess payable under the Finance Act, 1994. However, it is not disputed that even prior to Notification dated 6/9/2004, on export of man made fabrics, rebate was available in respect of Excise Duties paid thereon.
(3.) FOR reaching this conclusion, the revisional authority relied on notification dated 6/9/2004, Annex. 1 attached to the writ petition in which an Explanation was appended defining 'duty' for the purpose of notification. The definition of `duty' was inclusive one and it included under clause (g) "education Cess" on excisable goods as levied under clause 81 read with clause 83 of the Finance Bill 2/2004. Considering that under this Notification alone rebate on Education Cess was allowed in terms of Rule 18 of the Central Excise Rules, 2002, the revisional authority held that prior to issuance of notification dated 6/9/2004, no rebate was available on Education Cess which become payable on commencement of Finance Act of 2004 w. e. f. 9/7/2004. This has led to filing of this petition as no remedy is provided under the Statute against the order of Central Government. Learned counsel for the petitioner contends that Section 93 of the Finance Act makes it abundantly clear that with the commencement of the Finance Act, 1994, particularly the provisions relating to levy of Education Cess and exemption attached with the excise Duty payable under the Central Excise Act automatically became available to Education Cess as part of Duties on excise and no separate Notification was in fact required. Learned counsel further contends that even in the absence of Notification Annex. 1 dated 6/9/2004 the petitioner is entitled to avail exemption on excise duty payable on man made fabrics exported out of India, which was manufactured by the petitioner and did not depend on any fresh Notification. ;