TaxTMI 
TaxTMI 
2021 (4) TMI 226
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..../2020, WP(C) No. 4035/2020, WP(C) No. 4046/2020 and WP(C) No. 4194/2020. CEMENT INTERNATIONAL LTD., M/S. DIGBOI CARBON PVT. LTD., PAN PARAG INDIA LTD., M/S JUMBO PACKAGING INDUSTRIES, MODI MUNDIPHARMA BEAUTY PRODUCTS PVT. LTD. FORMERLY KNOWN AS KAMAKHYA COSMETICS AND PHARMACEUTICALS LTD., M/S KESHARI INDUSTRIES, M/S JOYSHREE POWEROL, KAMLANG SAW AND VENEER MILLS PVT. LTD., BARAK VALLEY CEMENTS LTD., M/S. BULLAND CEMENT PVT. LTD., OZONE PHARMACEUTICALS LTD., M/S. K.D. CEMENTS, M/S BRAHMAPUTRA CARBON LTD., M/S PURBANCHAL CEMENT LTD., M/S. B.R. METTALICS, MR G N SAHEWALLA, KAMAKHYA PLASTICS PVT. LTD., M/S AHINSHA CHEMICALS LTD., ASSAM CARBON PRODUCTS LIMITED, M/S. BARAK ISPAT PVT. LTD., M/S JSVM PLYWOOD INDUSTRIES LTD. (FORMERLY KNOWN AS M/S ARUNACHAL SAW AND VENEER MILLS PVT. LTD., GREENPLY INDUSTRIES LTD., M/S GATTANI POLYMERS, M/S NEW AGE PETCOKE PVT. LTD., NORTH EAST ROOFING (P) LTD., M/S K.D. COKES, UPPER ASSAM PETROCOKE PRIVATE LIMITED, M/S. K.D.IRON AND STEEL CO., M/S PRAG ELECTRICALS PVT LTD, M/S JUMBO ROOFING AND TILES, M/S GUWAHATI CARBON LIMITED, M/S. PCL CEMENT AND PIPE INDUSTRIES, M/S OZONE AYURVEDICS, M/S RIVER VALLEY CEMENT CORPORATION, JUDGMENT & ORDER (CAV) H....
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....hority directing the petitioner to show cause as to why the amount of Education Cess and Secondary and Higher Education Cess, which were refunded to the petitioners should not be recovered under the Provisions of Section 11A(i) of the Central Excise Act, 1944, (hereinafter known as the "Act") and further as to why interest should not be charged and realized in terms of Section 11AA of the Act. The show cause notices were issued in view of the Judgment and Order of the Apex Court in M/S Unicorn Industries -Vs- Union of India reported in (2020) 3 SCC 492 whereby an earlier Judgment of the Apex Court, namely, SRD Nutrients Pvt. Ltd. -Vs- Commissioner of Central Excise, Guwahati reported in (2018) 1 SCC 105 have been declared to be per incuriam. According to the Department, the refunds sanctioned to the petitioners earlier were made pursuant to the Judgment of the Apex Court in SRD Nutrients Pvt. Ltd. (supra) and the said Judgment having been held to be "per incuriam" by the Apex Court in the recent Judgment of M/S Unicorn Industries -Vs- Union of India; the refunds earlier granted to the petitioners on the strength of the Judgment in M/S SRD Nutrients (supra) have become "erroneous re....
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....d Infrastructure Development Centre or Export Promotion Industrial Park or Industrial Estates or Industrial area or Commercial Estate, as the case may be, specified in the Annexure appended to the said notifications from such of the excise or additional duty of excise leviable thereon as is equivalent to the amount of the duty paid by the manufacturer of goods from the account current maintained under Rule 9 read with Rule 173 G of the Rules. The exemption contained in the said notification was made applicable to only new Industrial Units which commenced their commercial production on or after the 24th Day of December, 1997 and to the Industrial Units existing before the 24th day of December but which undertook substantial expansion by way of increase in the installed capacity by not less than 25% on or after the 24th day of December, 1997. The exemption contained in the said notifications in terms of para 4 of the Notification was made applicable to any of the above stated Industrial units for a period not exceeding 10 years from the date of publication of the Notification in the official Gazette or from the date commencement of commercial production, which ever was later. 13. ....
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....for manufacturing of the respective excisable goods falling under various Central Excise Tariff Heads and Sub-heads. The particulars regarding the industrial units set pup by the petitioners are described in details later in this Judgment,. 16. All the petitioners are stated to be duly registered with the Central Excise Authority in accordance with the provisions of Central Excise Act, 1944. The goods manufactured at the petitioners' Plants/factories are cleared upon payment of Central Excise duties leviable thereon after due compliance of all required procedural formalities under cover of appropriate Central excise invoices. The petitioners had been claiming exemptions under Notification No. 20/2007-CE dated 25.04.2007, as amended, by way of refund excise duty through Account Current in respect of the above mentioned final products w.e.f. 25.11.2011. 17. By Finance Act, 2004, the Parliament levied Education Cess by way of the Finance Act, 2004. Education Cess was levied on goods specified in the First Schedule of the Central Excise Tariff Act, 1985, being goods manufactured or produced on which there shall be a duty of excise i.e. Education Cess, @ 2% calculated on aggregate....
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.... of the Notification No. 20/07 CE dated 25.042007. Ultimately, the question pertaining to entitlement of industrial units like the petitioners towards refund of Education Cess and Secondary and Higher Education Cess paid by the petitioners when the basic excise duty was exempted from the levy, was finally decided by the Apex Court in M/S SRD Nutrients Pvt. Ltd. Vs. Commissioner of Central Excise, Guwahati reported in (2018) 1 SCC 105. 18. The Apex Court by the Judgment and Order dated 10.11.2017 in "M/S SRD Nutrients (supra)" decided the issue by holding that the appellants were entitled to refund of Education Cess and Secondary and Higher Education Cess which were paid along with excise duty as the excise duty itself was exempted from levy. In the said Judgment, the Apex Court held that Education Cess is payable on excise duty and those assessees who are required to pay excise duty have to shell out Education Cess as well. It was further held that Education Cess was introduced by Sections 91 to 93 of the Finance (No. 2) Act, 2004 and as per Section 91 thereof, Education Cess is the surcharge which the assessee is required to pay. The Apex Court held that Section 93 of the Act o....
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....from the petitioners along with excise duty. 22. In pursuance to the Judgment of the Apex Court passed in SRD Nutrients (Supra) as well as the directions of this Court, the Assistant Commissioner, the respondent No. 3 herein, passed respective Refund Orders on various dates sanctioning the refunds claimed by the petitioners as Education Cess and Secondary and Higher Education Cess for the relevant periods. The said amounts sanctioned were subsequently refunded to the petitioner. 23. Pursuant to the refund orders sanctioned by the Department, the Apex Court while dealing with similar issues, in a recent judgment rendered in the case of Unicorn Industries -Vs- Union of India, held that in the absence of notifications containing an exemption to additional duties in the nature of Education Cess and Secondary & Higher Education Cess, it cannot be said that same are exempted. The Apex Court held that in Union Of India & Ors -Vs- M/S Modi Rubber Limited reported in (1986) 4 SCC 66, and in Rita Textiles Pvt. Ltd. and Ors. -Vs- Union of India reported in (1986) Supp SCC 557 had already laid down the law and the subsequent judgment rendered by the Apex Court in the case of SRD Nutrient....
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....arag House, 24/19, The Mall, Kanpur- 208001 having one of its unit at A-1 to A-4, Industrial Estate, Cinnamara, Jorhat- 785008. manufacture and sale of Pan Masala and Pan Masala containing tobacco Rs. 1,93,05,728/ F.No.V(18)01/A CJ/REF/2018- 19/327 Dated 10.02.2020 Assistant Commissioner, CGST, Division Jorhat. 3 WP(C)/1780 /2020 M/S. DIGBOI CARBON PVT. LTD. Vs. UNION OF INDIA & 2 ORS. Office and factory at Borguri Industrial State, Borguri, Tinsukia, Assam,Pin- 786126 excisable goods viz. Calcined Petroleum Coke E.Cess + S&HE Cess= Dt.15.11.18 Rs. 34,41,786/- Dt. 05.12.18 Rs. 3,37,922/-Dt. 13.09.19 Rs. 10,63,719/- 06.02.2020 No. F.No.V(15)06/S CN/DCPL/ACT/2019-20 Assistant Commissioner, Central Goods & Service Tax, Tinsukia. 4 WP(C)/2872 /2020 M/S OZONE AYURVEDICS, UNIT-II Vs. UNION OF INDIA & 4 ORS Office and factory at EPIP, Amingaon, Guwahati, Dist- Kamrup, Assam- 781031 Ayurvedic Extracts, Cosmetics or Toilet Preparation and Medicaments of Ayurvedic Rs. 20,10,048/- C.No. V (18)10/SCN- CESS/OZONE AYURVEDICS- II/ACG-I/2020 dated 02.06.2020 Assistant Commissioner Guwahati, Assam. 5 WP(C)/2899 /2020 M/S ....
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....1001 excisable goods viz. Diesel Generator Set and Acoustic Enclosure & Electrical Panel Rs. 2,94,502/- C.NO.V(18)24/S CN- CESS/Powerol/ ACG- I/2020/2318 Dated 02.06.2020 Superintendent (Tech-I), CGST & Central Excise Guwahati Division-I. 12 WP(C)/2947 /2020 M/S. OZONE AYURVEDICS Vs. UNION OF INDIA AND 4 ORS Office and Factory at EPIP, Amingaon, Guwahati, Dist- Kamrup, Assam- 781031 Ayurvedic Medicaments Rs. 49,23,097/- C.No.V(18)18/S CN-CESS/Ozone Ayurvedics/ACG -I/2020 dated 02.06.2020 Assistant Commissioner , Guwahati, Assam. 13 WP(C)/2951 /2020 M/S. BARAK ISPAT PVT. LTD. Vs. UNION OF INDIA AND 4 ORS Office at Mohanpur Road, Srikona, Silchar- 26 and Factory at Dag No. 187 & 188 of 2^nd R S Patta No. 15 & 161, Mouza Srikona, Dist- Cachar, Assam. M. S and H.S.D. Rod Rs. 3,59,344/- C.No.IV(10)20/ E.CESS/Refund/ ACS/2019/707 dated 09.06.2020 Assistant Commissioner, Silchar, Assam. 14 WP(C)/3049 /2020 M/S BARAK ALLOY Vs UNION OF INDIA AND 4 ORS Office at Mohanpur Road, Srikona, Silchar- 26, Assam and Factory at Mouza Srikona, Part- II, Pargana Rajnagar, Dist-Cachar, Assam. M. S. Ingot Rs. 22,49,076/- ....
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....ACHAL SAW AND VENEER MILLS PVT. LTD Vs THE UNION OF INDIA AND 4 ORS Office at 17^th Mile, Stilwell Road, P.O. Jairampur, Dist- Changlang, Arunachal Pradesh. articles of wood Rs. 14,09,689/- C.No. V (18)07/Refund/ JSVM/ACI/2018 /149 dated 06.03.2020 Deputy Commissioner Itanagar Division, Arunachal Pradesh. 22 WP(C)/3237 /2020 M/S. PCL CEMENT AND PIPE INDUSTRIES Vs UNION OF INDIA AND 3 ORS. Place of business at Borera Gaon, Na Ali, Titabar, Dist- Jorhat, Assam- 785630 Excisable goods viz. Cement. Rs. 1,29,710/- C.NO. V(18)02/ACJ/R EF/PCL/2019- 20/216 dated 06.03.2020 Assistant Commissioner, CGST, Division Jorhat. 23 WP(C)/3298 /2020 BARAK VALLEY CEMENTS LTD Vs UNION OF INDIA AND 3 ORS Manufacturing unit at Dabendranagar, Jhoom Basti, P.O. Badarpurghat, Dist- Karimganj, Assam. excisable goods viz. Clinker and OPC/ PPC/ PSC Cement Rs. 1,66,22,535/- C.No.V(15)09/A DJ/CGST- HQRS/GHY/CE/ 2020 dated 27.07.2020 Joint Commissioner, GST & Central Excise Commissionera te, Guwahati. 24 WP(C)/3372 /2020 CENT PLY Vs UNION OF INDIA AND 2 ORS. Principal place of business at Mirza- Palashbari Road, Palashbari, K....
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....uwahati, Assam- 781022 manufacture of Cosmetics Rs. 1,09,35,787/- C.NO.V(15)14/ ADJ/CGST- HQRS/GHY/CE/ 2020/752-53 dated 27.07.2020 Joint Commissioner, GST & Central Excise Commissionera te, Guwahati 31 WP(C)/3810 /2020 M/S. K.D.IRON AND STEEL CO. Vs UNION OF INDIA AND ANR Factory at Integrated Industrial Development Centre, Village- Borshil, P.O. Moranjana, Rangia, in the district of Kamrup(R) M.S. Rod, M.S. Pipe, M.S. Wire Rod and M.S. Billet E.Cess + SHE Cess= Rs. 25,70,952/- C.No.V(18)21/S CN- CESS/K.D.IRON /ACG- I/2020/2351 Dated 02.06.2020 Assistant Commissioner, GST & Central Excise, Guwahati-I Division, Guwahati 32 WP(C)/3835 /2020 M/S. SHANDAR PAINTS INDUSTRY (UNITII) Vs UNION OF INDIA AND 4 ORS A sole proprietorship concern having their principal place of business at Shed No.11 & 12, Rani Industrial Area, Rani, Kamrup- 781131. Special Oxide Pigment, Damp Roof Powderfallin g Rs. 2,14,199/- V(18)23/SCN- CESS/Shandar- II/ACG-I/2020/2269 Dated 27.05.2020 alleged Rs. 2,14,199/-erroneous refund. Superintendent Technical-I 33 WP(C)/4031 /2020 M/S K.D. COKES Vs THE UNION OF INDIA AND 2 ORS Office at Village- ....
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....Tax, Guwahati-II Division, Guwahati. 39 WP(C)/4721 /2020 M/S NEW AGE PETCOKE PVT. LTD. Vs UNION OF INDIA AND ANR. Office and Industrial Unit at Palashbari, P.O. Kajalgaon, in the District of Chirang (BTAD), Assam. Calcined Petroleum Coke E.Cess + SHE Cess= 4,50,915/- Bearing No. GEXCOM/SCN/ CE/29/2020- TECH-CGST- DIV-BONG- COMMRTE- GUWAHATI-I/19126/2020/7 14 Dated 07.10.2020 Assistant Commissioner, GST & Central Excise, Bongaigaon Division 40 WP(C)/4824 /2020 M/S BRAHMAPUT RA CARBON LTD Vs THE UNION OF INDIA AND 2 ORS Industrial Estate, New Bongaigaon, Assam-783380 Calcined Petroleum Coke (CPC). E.Cess + S&HE Cess= Dt. 14.02.2019 Rs. 4,84,461/-Dt. 20.06.2019 Rs. 47,80,113/- Dated 07.10.2020 Assistant Commissioner. 41 WP(C)/4947 /2020 GREENPLY INDUSTRIES LTD. Vs UNION OF INDIA AND 3 ORS Makum Road, Tinsukia, Assam and its manufacturing unit at Lapa Lampong, Tizit, Mon, Nagaland- 798602 and having one of its office at Makum Road, Tinsukia, Assam Plywood, Block Board, Flush Door etc. Rs. 1,31,28,902/- C.No.IV(9)02/D MR/GST/COMM R/ADJ/GREENP LY/2020-21 dated 04.06.2020 Commissioner, CGST, Dimapur, ....
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....cise Act, 1944. 27.1. The learned senior counsel submits that in the fact of the present proceedings, the impugned show cause notices have been issued by the Department invoking Section 11A by holding that the refunds granted to the petitioners towards Education Cess and Secondary and Higher Education Cess. As the case may be, on the ground that the same were refunded erroneously. The learned Senior counsel submits that the basis for arriving at a conclusion by the department that the refunds were granted erroneously is solely on the ground that judgment of the Apex Court rendered in SRD Nutrients (supra) has been held to a judgment rendered "per incuriam" by the apex Court in the recent judgment of M/S Unicorn Industries (Supra). 27.2. The learned senior counsel submits that the condition precedent for exercise of power under Section 11A(1) of the Act are wholly missing in the present case inasmuch as refund of Education Cess and Secondary and Higher Education Cess was neither on the basis of any approval, acceptance or assessment relating to the rate of duty on or valuation of excisable goods under any other provisions of the Act or the rules made there under nor by reason ....
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....been defined by the Black's Law Dictionary as "involving error; deviating from the law". The learned counsel referred to the Judgment of the Apex Court in Malabar Industrial Co. Ltd. Vs. Commissioner of Income Tax, Kerala State, (2) 2 SCC 718 held that incorrect assumption of facts or an incorrect application of law will satisfy the requirement of the order being erroneous. 30. The learned Sr. counsel submits that this Court in Rajendra Singh Vs. Superintendent of Taxes reported in 1990 Vol. 1 GLR 449, held that "erroneous" means involving error; deviating from law. The Division Bench of this Court in the said judgment held that "Erroneous assessment" refers to an assessment that deviates from the law and is therefore invalid, and is a defect that is jurisdictional in its nature, and does not refer to the judgment of the assessing officer in fixing the amount of valuation of the property. Similarly 'erroneous judgment' means: 'One rendered according to course and practice of Court, but contrary to law, upon mistaken view of law, or upon erroneous application of legal principles". 31. The learned senior counsel submits that the said judgments of this Court rendered in....
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....epartment against the order of the concerned departmental officer sanctioning the refunds of Education Cess and Secondary and Higher Education Cess to the petitioners. It is submitted that if the department was aggrieved they could have preferred an appeal as provided under Section 35 of the Central Excise Act. However, no such appeal has ever been preferred by the Departmental authorities, the refunds granted has long attained finality. 33. It is further submitted that in respect of WP(C) 2918/2020, W.P(C) No. 3156/2020, W.P.(C) No. 3237/2020, W.P(C) 3464/2020, W.P(C) No. 4035/2020, W.P(C) No 4046/2020, W.P.(C) No. 4194/2020 and W.P.(C) No. 1366/2020, the refunds were granted on the basis of directions issued by this Hon'ble Court in writ applications filed by the petitioners. No appeals against such orders were filed by the Department and therefore, the orders passed by this Court in the writ petitions have attained finality. The refunds granted to those petitioners on the basis of such orders being passed by this Court have been so done because the Department has accepted the direction of this Hon'ble court passed in the said writ petitions. Accordingly, they are estopped and....
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....s (supra) to be "per incuriam", the Department is duty bound in law to treat the refunds granted earlier to have been wrongly or erroneously granted. The learned Standing counsel submits that in view of the judgment of M/S Unicorn (supra) that the earlier judgments rendered in M/S SRD Nutrients(supra) was rendered "per incuriam" has occasioned the necessity of the issuance of the show cause notices by the Department for recovery of the refunds granted earlier in terms of the judgments of SRD Nutrients(supra). The learned Standing counsel submits that the Apex Court in M/S Unicorn Industries(supra) has held M/S SRD Nutrients (supra) to have been rendered in "per incuriam" in view that earlier judgments rendered by the Apex Court in Modi Rubber(supra) and Rita Textile Pvt. Ltd (supra) were not considered by the Apex Court while rendering M/S SRD Nutrients(supra). The learned Standing counsel submits that as the refunds made earlier were contrary to the law laid down in Modi Rubber(supra) and Rita Textile, therefore, the refunds will have to be considered to have been made erroneously. Under such circumstances the department has correctly sought the recovery of the refunds already gra....
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....d to be applicable from a retrospective period except otherwise when indicated in the Judgment itself. The refunds allowed to the petitioners earlier are now required to be recovered as they have become refunds erroneously made in view of the Judgment of the Apex Court in M/S Unicorn Industries (supra). The petitioners are under clear obligation to pay back the amounts which were received by them in terms of the Judgment of M/S SRD Nutrients (supra) which have been overruled presently. As the refunds granted earlier to the petitioners have become erroneous in view of the judgment of the Apex Court in M/S Unicorn Industries(supra), the demand-cum-show cause notices were rightly issued by the Department under Section 11A. 38. The learned standing counsel further contended that in terms of Notification No. 32/99 and 33/99 both dated 08.07.1999 and Notification No. 20/2007 dated 25.04.2007, there was no provision for exemption of the Education Cess and Secondary and Higher Education Cess provided for. The refunds of the Education Cess and Secondary and Higher Education Cess were granted by the Department only in terms of the judgment of the Apex Court in SRD Nutrients (supra) which ....
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....h a case may not have been expressly over-ruled but once it has been held that it has been rendered "per incuriam", it cannot be said that it lays down good law as held by the Apex Court in Mukesh K. Tripathi -Vs- L.I.C. (2004) 8 SCC 387. He further refers to Sanchalakshri -Vs- Vijyakumar Raghuvirprasad Mehta reported in (1998) 8 SCC 245 to submit that the Judgment of the Apex Court in "M/S Unicorn Industries"(supra) had not laid down any new law but has only interpreted the existing law and therefore, the Judgment will have to relate back to the date when the law came into force. The learned standing counsel submits that in Sanchalakshri (supra). The Apex Court held that the High Courts/Tribunal did not possess the same power as the Apex Court possess under Article 142 of the Constitution of India for doing complete justice, even in the absence of such a provision. Therefore, he submits that unless indicated in the Judgment itself, it will have retrospective effect. The learned standing counsel also referred to H.P. Nurpur (P) Bus Operators' Union reported in (1999) 9 SCC 559 to submit that once a Court came to the conclusion that the provisions are declared invalid, then the coll....
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....n of jurisdiction be res judicata in a subsequent suit or proceeding. He referred to the Judgment of Supreme Court Employees' Association -Vs Union of India reported in (1989) 4 SCC 187 in support of his contention. The relevant paragraph of the judgment is extracted as under:- "24. Thus, a decision on an abstract question of law unrelated to facts which give rise to a right, cannot operate as res judicata. Nor also can a decision on the question of jurisdiction be res judicata in a subsequent suit or proceeding. But, if the question of law is related to the fact in issue, an erroneous decision on such a question of law may operate as res judicata between the parties in a subsequent suit or proceeding, if the cause of action is the same. The Delhi High Court judgments do not decide any abstract question of law and there is also no question of jurisdiction involved. Assuming that the judgments of the Delhi High Court are erroneous, such judgments being on questions of fact would still operate as res judicata between the same parties in a subsequent suit or proceeding over the same cause of action." 41. The further contention of the learned standing counsel is that grant ....
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....orial discrimination and which will be against the letter and spirit of Article 141 of the Constitution of India which provides that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. 44. The learned counsel for the parties have been heard. The pleadings on record have also been perused. There is no dispute with regard to the facts that the petitioners before this Court have all set up their industries or under took substantial expansions of the industries and are manufacturing excisable items. The excise duty on the products manufactured by the petitioners are exempted under the Industrial Policy of 1997 and 2007. The petitioners claimed refund of the Education Cess and Secondary and Higher Education Cess paid as it was their contention, that since the excise duty on the products manufactured were itself exempted under the Industrial Policy notification issued by the Central Government in furtherance of the Industrial Policy. The claims of refund of Education Cess and Secondary and Higher Education Cess were rejected by the Department and against which appeals were filed before the Customs, Excise & Service Tax Appellate Tribunal....
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....Court in "M/S Unicorn Industries" (supra) wherein the earlier Judgment of "M/S SRD Nutrients Private Limited" (supra) was held to be "per incuriam" and whether the same can be recovered under the provisions of Section 11A of the Central Excise Act as sought to be done by the Department. The further question that has arisen for consideration in the present proceedings is whether an order passed by the Quasi Judicial Authority under the Central Excise Department granting refunds earlier can be revisited by another co-lateral authority of the same Department in exercise of their powers under the Central Excise Act. To deal with the question presented, it is necessary to first refer to statutory provisions, under which the show cause notices were issued by the department under Section 11A and 11AA of the Central Excise Act, 1944 which reads as under:- "[11-A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded.- (1) Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, for any reason, other than the reason of fraud or collusion or any wilful misstatement or suppression of....
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....uty specified in the notice. 1[* * *] 2[(7-A) Notwithstanding anything contained in sub-section (1) or sub-section (3) or sub-section (4) 3[* * *], the Central Excise Officer may, serve, subsequent to any notice or notices served under any of those subsections, as the case may be, a statement, containing the details of duty of central excise not levied or paid or short-levied or short-paid or erroneously refunded for the subsequent period, on the person chargeable to duty of central excise, then, service of such statement shall be deemed to be service of notice on such person under the aforesaid sub-section (1) or sub-section (3) or sub-section (4) 3[* * *], subject to the condition that the grounds relied upon for the subsequent period are the same as are mentioned in the earlier notice or notices.] 4[(8) Where the service of notice is stayed by an order of a court or tribunal, the period of such stay shall be excluded in computing the period of 5[two years] referred to in clause (a) of sub-section (1) or five years referred to in sub-section (4) 1[* * *], as the case may be.] (9) Where any appellate authority or tribunal or court concludes that....
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....st payable has not been paid or part paid or erroneously refunded. [(16) The provisions of this section shall not apply to a case where the liability of duty not paid or short-paid is self-assessed and declared as duty payable by the assessee in the periodic returns filed by him, and is such case, recovery of non-payment or short-payment of duty shall be made in such manner as may be prescribed.]" [11-AA. Interest on delayed payment of duty.- (1) Notwithstanding anything contained in any judgment, decree, order or direction of the Appellate Tribunal or any court or in any other provision of this Act or the rules made thereunder, the person, who is liable to pay duty, shall, in addition to the duty, be liable to pay interest at the rate specified in subsection (2), whether such payment is made voluntarily or after determination of the amount of duty under Section 11-A. (2) Interest, at such rate not below ten per cent, and not exceeding thirty-six per cent per annum, as the Central Government may, by notification in the Official Gazette, fix, shall be paid in terms of Section 11A after the due date by the person liable to pay duty and such interest shall b....
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.... STC 332 observed as under: "4. 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 appeals preferred by M/s. Free Wheels (India) Limited as on the day when the appeals were decided had committed any illegality or the orders suffered from any impropriety. All that is stated on behalf of the counsel representing the State of Haryana is that the appellate authority had based its decision on the decision of the Tribunal in M/s. Liberty Footwear Co., Karnal, which decision could not be held to be laying down the correct law in view of the later decision rendered by the Tribunal in M/s. Steel Kraft, Panipat. We do not find a....
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....efore the order passed in the S.L.P. dated 3.3.1997 may be reviewed. 12. ........................................... 13. From the above, it can reasonably said that despite the fact that it was brought to the notice of the Apex Court that the earlier view expressed in (1992) 2 SCC 683 stood reversed in (1995) 1 SCC 58; yet the Apex Court did not review the order passed in the SLP inasmuch as the Division Bench judgment of this High Court in Mahavir Coke Industries case was on the basis of the then existing law i.e., (1992) 2 SCC 683 and could not be said to be wrong just because later on that view was upset in (1995) 1 SCC 58. We agree with the learned counsel that law laid down in Tax matters should normally be applied prospectively. No tax was collected by the appellant from the purchasers as per the law then existing. On the basis of what has been observed above, we are of the view that on the day the assessment order was passed and even on the day when the Assistant Commissioner of Taxes passed the order on 31.7.1992 the law then existing was as per (1992) 2 SCC 683 as also the earlier law of this Court and the various other High Courts. The orders of assessme....
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....ater decision rendered by the Tribunal in Steel Kraft, Panipat. We do not find any merit in the contention of the learned counsel as on the day when the appellate authority decided the appeals preferred by Free Wheels (India) Ltd., the decision rendered by the Tribunal in Liberty Footwear Co., held the field. If on a subsequent decision the Tribunal has taken a contrary view it would not make the proceedings that have been finalised far earlier and are based upon an earlier decision of the Tribunal either illegal or improper. If the contention of the learned State counsel is upheld, it would result into endless litigation as all matters finalised earlier on the basis of law then in existence and holding the field would need reconsideration if law changes in succeeding years. All matters that have been finalised shall be then reopened, thus, unsettling the settled matters, in any case, as mentioned above, the order passed by the appellate authority which was based upon the law then holding the field could not possibly be styled as illegal or improper. That apart, the Commissioner by powers vested in him by virtue of section 40 on his own motion can call for the record of any case pe....
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....63 must be exercised on the basis of the materials that was available to him when he exercised the power. The Apex Court held that the satisfaction of the Commissioner was not based on materials either legally or factually which would have given the jurisdiction to take action under section 263. It was held:- "6. In this particular case, the Commissioner has not recorded any reason whatsoever for coming to the conclusion that the assessing officer was erroneous in deciding that the power subsidy was capital receipt. Given the fact that the decision of the jurisdictional High Court was operative at the material time, the assessing officer could not be said to have erred in law. The fact that this Court had subsequently reversed the decision of the High Court would not justify the Commissioner in treating the assessing officer's decision as erroneous. The power of the Commissioner under Section 263 of the Income Tax Act must be exercised on the basis of the material that was available to him when he exercised the power. At that time, there was no dispute that the issue whether the power subsidy should be treated as capital receipt had been concluded against the Revenue. ....
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....ed by the petitioners on the basis of the Judgment in SRD Nutrients without any demur. The contention of the departmental counsel that the refunds sanctioned become erroneous by virtue of the Apex Court holding the judgment of SRD Nutrients to be rendered per incuriam as the still earlier Judgments of the Apex Court rendered in Modi Rubber(supra) and Rita Textile(supra) were not considered, cannot accepted. It is not disputed that pursuant to the judgment of the SRD Nutrients, a review application was filed by the Department and which was dismissed on 10.07.2018. 54. As such a perusal of the law discussed above, it can be held that the concerned departmental Officer exercising power under Section 11A of the Central Excise Act must arrive at finding that the earlier order/refunds as have been granted in the present proceedings, were contrary to the law and therefore, erroneous and that the same are required to be reopened or recovered by invoking the powers under Section 11A. The refunds were granted by the Department in terms of the Judgment in "M/S SRD Nutrients Private Limited" (supra). As discussed above, the Department accepted the Judgment of the Apex Court in "M/S SRD Nutr....
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....d down by the Apex Court in a catena of judgments. 56. In this context, it will be relevant to refer to meaning ascribed to a "judgment" by the Apex Court :- 2. Generally speaking, a judgment adjudicates on the rights of the parties as they existed before the suit in which it was obtained. A judgment is an affirmation of a relation between a particular predicate and a particular subject. So, in law, it is the affirmation by the law of the legal consequences attending a proved or admitted state of facts. Its declaratory, determinative and adjudicatory function is its distinctive characteristics. Its recording gives an official certification to a pre-existing relation or establishes a new one on pre-existing grounds. It is always a declaration that a liability, recognized as within the jural sphere, does or does not exist. 57. From the judgment of the Apex Court discussed above, it is evident that a "Judgment" decides the rights between the parties to a lis. Once a Court renders a judgment on the issues viz-a-viz the rights of the parties, such a judgment can only be re-visited by the established judicial norms, namely, a review or an appeal or revision in some cases. ....
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....er decision of a smaller one is intended to take away the precedent value of the decision without effecting the binding effect of the decision in the particular case. Antulay, therefore, is not entitled to take advantage of the matter being before a larger Bench." 59. This judgment of the Apex Court came up to be considered again in the Apex Court of Madras Telephone SC & ST Welfare Association, reported in (2006) 8 SCC 662. In the said judgment the Apex Court held that since the rights of applicants were determined in duly constituted proceedings which determination as attained finality, a subsequent judgment of the Court or a tribunal taking a contrary view will not adversely affect the applicant in whose cases the orders have attained finality. The said judgment is extracted below: "21. Having regard to the above observations and clarification we have no doubt that such of the applicants whose claim to seniority and consequent promotion on the basis of the principles laid down in the Allahabad High Court's judgment in Parmanand Lal case [Parmanand Lal and Brij Mohan v. Union of India, WPs Nos. 2739 and 2652 of 1991 decided on 20-2-1985] have been upheld or recogn....
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....r a curative petition and in no other way. It was in this context that in para 85 of Cauvery (2) [1993 Supp (1) SCC 96 (2)], this Court had stated that the President can refer a question of law when this Court has not decided it. Mr. Harish Salve, learned Senior Counsel, is right when he argues that once a lis between parties is decided, the operative decree can only be opened in review. Overruling the judgment-as a precedent- does not reopen the decree. 48.2. The second limitation, a self-imposed rule of judicial discipline, was that overruling the opinion of the Court on a legal issue does not constitute sitting in appeal, but is done only in exceptional circumstances, such as when the earlier decision is per incuriam or is delivered in the absence of relevant or material facts or if it is manifestly wrong and capable of causing public mischief. For this proposition, the Court relied upon the judgment in Bengal Immunity case [AIR 1955 SC 661 : (1955) 2 SCR 603] wherein it was held that when Article 141 lays down that the law declared by this Court shall be binding on all courts within the territory of India, it quite obviously refers to courts other than this Court; and ....
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....-defeating inasmuch as the refunds were granted earlier in terms of the Apex Court in "M/S SRD Nutrients Private Limited" (supra). From the pleadings, it is evident that even in the writ petitions filed before this Court, the Department accepted that the Apex Court in "M/S SRD Nutrients Private Limited" (supra) held that the Education Cess and Secondary and Higher Education Cess paid along with the excise duty were required to be refunded. The Department accepted the Judgment in "M/S SRD Nutrients Private Limited" (supra) and refunded the Education Cess and Secondary and Higher Education Cess notwithstanding the contrary view of the Apex Court in "M/S Modi Rubber Limited" and "Rita Textiles Pvt. Ltd". 64. The Judgment referred to by the Department in M.A. Murthy (supra) to support the above contention does not come to the aid of the respondents. In this judgment, the Apex Court held that the law declared by the Supreme Court under Article 141 has to be assumed to be the law from inception. Prospective overruling is only an exception to the normal rule. The decision of the Apex Court unless indicated therein to be operative on the prospectively cannot to be treated to be so, more....
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....pect of "M/S SRD Nutrients (supra)" has also been filed and the same is pending before the Apex Court. No order passed by the Apex Court allowing or rejecting the said review petition has been brought before this Court till the date of hearing of these matters. In any view of the matter such orders that may be passed by the Apex Court in the review application will be binding on all including this Court. 66. The contra submissions of the respondents, however, do not deal with the proposition of law as laid down by the Apex Court in the case of A.R. Antulay (Supra) and Madras Telephone SC & ST Welfare Association (supra).There is no quarrel with the submissions of the respondent that the earlier judgment under which the refunds were granted, namely, "M/S SRD Nutrients (supra)" has been declared in "per incuriam" by subsequent a judgment of the Apex Court rendered in M/S Unicorn industries (Supra). However, it is equally not disputed by the respondents that the refunds sought for were granted following the judgment of the Apex Court rendered in "M/S SRD Nutrients (supra)" and/or judgment of this Court directing the respondents to comply with the law declared by the Apex court in "....
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....2007) 1 SCC 174] ]. Thereupon, the person has to be given a reasonable opportunity to file representation and also produce evidence. The Tribunal has been authorised to consider and allow prayer for production and examination of the witnesses which can be refused if found to be vexatious, or made with the intent to cause delay, etc. The evidence produced by the Superintendent of Police can also be recorded. The person concerned has to be heard before the Tribunal gives its opinion. The person concerned may appear in person or can be represented by a legal practitioner or an authorised representative. Opinion is to be given within a period of sixty days after the reference from the competent authority. No doubt, the Rules do not prescribe and require an opinion of the Tribunal to be a detailed judgment, nevertheless, it is obvious that the opinion rendered must state the facts and reasons for drawing the conclusions. It is a decision and an order. Fixing time-limits and recording of an order rather than detailed judgment is to ensure that these cases are disposed of expeditiously and in a time-bound manner. The opinion by the Foreigners Tribunal is a quasi-judicial order and not an ....
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....way of writ proceedings. The characteristic attribute of a judicial act or decision is that it binds, whether right or wrong. Thus, any error, either of fact or law, committed by such bodies cannot be controverted otherwise by way of an appeal or a writ unless the erroneous determination relates to the jurisdictional matter of that body. 25. In J.J. Merchant v. Shrinath Chaturvedi [J.J. Merchant v. Shrinath Chaturvedi, (2002) 6 SCC 635], when the learned counsel had pleaded that the National Consumer Disputes Redressal Commission cannot examine complicated questions of facts which require examination and cross-examination of experts including doctors and that the procedure followed for determination of consumer disputes being summary in nature is not suitable for determination of complicated questions, this Court rejected these contentions and held that under the Consumer Protection Act, 1986, for a summary trial, an exhaustive procedure conforming to the principles of natural justice is provided. Merely because the trial is summary in nature cannot be a ground to reject it as unjust or unfair. Further, it was held in Rajesh Kumar v. CIT [Rajesh Kumar v. CIT, (2007) 2 SCC ....
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....lly revoke or re-open the issue without taking recourse to the remedies available to them before a judicial forum. Such actions initiated by issuance of the impugned show cause notices, if permitted, will amount to revoking the earlier orders passed by the departmental officers exercising Quasi Judicial powers unilaterally and which action cannot be permitted in view of the law laid down by the Apex Court in "Abdul Kuddus" (supra). 69. Department Circulars - Binding on Department Officers. It is contended by the petitioners that the actions of the department impugned in the present proceeding are contrary to departmental circulars/instructions issued by the department on 09.01.2020 whereby the field officers and department officers have been instructed to contest by filing Statutory Appeals/ Writ Appeals or Review Petitions or forward proposals for filing SLP to the Board in view of the judgment of the Apex Court of M/S Unicorn Industries (Supra), it is seen that the circular vide Circular No. F. No. 276/187/2018CX.8A part, has been issued by the legal cell of the Central Board of Indirect Taxes and Customs, Department of Revenue, Ministry of Finance, Government of India and the....
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....circular issued by CBEC. When the circular remains in operation, the Revenue is bound by it and it cannot be allowed to take the plea that it is not valid or that it is contrary to the terms of the statute. The relevant paragraph of the judgment is extracted below:- 12. The principles laid down by all these decisions are: (1) Although a circular is not binding on a court or an assessee, it is not open to the Revenue to raise a contention that is contrary to a binding circular by the Board. When a circular remains in operation, the Revenue is bound by it and cannot be allowed to plead that it is not valid nor that it is contrary to the terms of the statute. (2) Despite the decision of this Court, the Department cannot be permitted to take a stand contrary to the instructions issued by the Board. (3) A show-cause notice and demand contrary to the existing circulars of the Board are ab initio bad. (4) It is not open to the Revenue to advance an argument or file an appeal contrary to the circulars. 71. Judicial Review in Show Cause Notice There is another aspect that needs to be dealt with in the present proceedings. The petitioners befor....