TaxTMI 
TaxTMI 
2021 (1) TMI 753
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....ture of excisable goods such as M.S. Ingots, HSD Bars, Rods etc. falling under Central Excise Tariff Sub Heading No.72142090 & 72061010. In order to encourage industrial growth in the North Eastern region and for the industrial development of the region the Government of India had formulated industrial policy. After due deliberations the Government of India issued a notification dated 24.12.1997 under which certain areas such as growth centres, infrastructure development centres, export promotion and industrial parks etc. were made tax free zones for a period of 10 years. Pursuant to such notification various circulars were issued giving shape to the said industrial policy granting exemption from payment of excise and additional duty of excise. In subsequent policy decisions taken by the Government of India in the year 2007 also such concessions were continued. Attracted by the tax concessions offered by the Government of India the petitioner established a plant for manufacture of excisable goods such as M.S. Ingots, HSD Bars etc. in the State of Tripura. The commercial production commenced on or around 13th February, 2006. For the goods cleared by the petitioner from its manufa....
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....ion Cess along with the Excise Duty will also not barred by unjust enrichment and the refundable amount will also be calculated in line of the calculation of the Excise Duty refund. I sanction an amount of Rs. 35,97,315/- (Rupees thirty five lakh ninety seven thousand three hundred fifteen) as Education Cess and Rs. 17,08,740/- (Rupees seventeen lakh eight thousand seven hundred forty) as Secondary & Higher Education Cess of totaling Rs. 53,06,055/- (Rupees fifty three lakh six thousand fifty five) for the period from 2005-06 to 2014-15 as arrear refund to M/s Tripura Ispat, Bodhjungnagar Industrial Growth Centre, Bodhjungnagar, P.O. R.K. Nagar, Tripura (West), PIN 799008 as per judgment dated 10.11.2017 of the Hon'ble Supreme Court of India." [5] The petitioner received the refund as per the said order of the Assistant Commissioner. However, a few months after the Assistant Commissioner passed the said order, the decision of the Supreme Court in case of SRD Nutrients (supra) came up for consideration in three- Judge Bench judgment in case of Unicorn Industries versus Union of India and others reported in (2020) 3 SCC 492. In Unicorn Industries. The Supreme Court hel....
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....ow the competent authority to pass order in accordance with law. However, in the present case the petitioner has questioned the very jurisdiction of the Assistant Commissioner to raise a demand for recovery of the refund already released. No factual aspects are involved. We have, therefore, heard learned counsel for the parties at considerable length for final disposal of the petition. [8] Appearing for the petitioners learned counsel Dr. Saraf painstakingly took us to the relevant statutory provisions and case law and contended that the Assistant Commissioner had passed the order of refund based on the decision of the Supreme Court in case of SRD Nutrients (supra) which held the field at the relevant time. Any subsequent change in law, would not authorize the competent authority to seek recovery of such refund since his original order can neither be stated to be erroneous nor would any such change in law will cloth him with the jurisdiction to seek recovery in terms of Section 11A of the Central Excise Act. Counsel has placed for our consideration several decisions of Supreme Court and various High Courts, some of which are for the purpose of pressing home the same contention. ....
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....hereunder, a Central Excise Officer may, within one year from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice". Provided that where any duty of excise has not been levied or paid or has been short- levied or short- paid or erroneously refunded by reason of fraud, collusion or any wilful misstatement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent, the provisions of this sub- section shall have effect as if for the words one year, the words" five years" were substituted. 4. Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, by the reason of (a) fraud; or (b) collusion; or (C) any wilful mis-statement; or (d) suppression of facts; or (d) contravention of any of the provisions of this Act or of the r....
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....aw by the Supreme Court. Any other view would lead to total anarchy. Based on the judgment of the Supreme Court several proceedings would have been decided. If years later such view is reversed, the parties who had not carried the proceedings in higher forum and thus not kept the proceedings alive, cannot trigger a fresh look at the decision already rendered by the competent court on the basis of the previous judgment of the Supreme Court which was correctly applied at the relevant time. [13] If the department was aggrieved by the refund order passed by the Assistant Commissioner, it was open for the department to file appeal against such order as is provided in Section 35 of the Central Excise Act, 1944. It is well settled that under section 35 even the department can be stated to the person aggrieved against an order that the competent authority may pass. Thus the order of assessing officer is open to challenge at the hands of the department under Central Excise Act unlike in case of Income Tax Act, 1961 where the assessing officer's order of assessment cannot be appealed against by the department and a limited review is available under Section 263 of the Income Tax Act, 19....
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....5 SCC 536 where the nine-Judge Bench of the Supreme Court settled several issues of refund of excise and customs duties. One of the principles settled by the majority judgment was that each party must carry his own assessment in appeal and cannot rely on the order of the higher forum in case of some other assessee to claim refund of the duty collected in his case. [18] In case of State of Haryana versus Free Wheels (India) Ltd. reported in 1997 SCC Online P&H 1849 : (1997) 107 STC 332, the Division Bench of Punjab and Haryana High Court had observed as under : "(5) From the perusal of section 40 as reproduced above, it would be apparent that the Commissioner can call for the record of any case pending before or disposed of by any Assessing Authority or appellate authority to satisfy himself as to the legality or propriety of any proceedings or any order and pass such order in relation thereto as he may think fit. The scope of revisional powers is, thus, only to examine legality or propriety of any proceedings or any order. That being the scope of the revision, the only question that, thus, needs determination is as to whether the appellate authority while accepting the ....