TaxTMI 
TaxTMI 
2021 (10) TMI 245
X X X X Extracts X X X X
X X X X Extracts X X X X
....same Petitioner to the notice dated 27th December 2016 regarding payment of surcharge under the OST Act for the period 2000-01 as well as the re-computation order dated 28th January 2017 calling upon the Petitioner to pay Rs. 31,05,765/- towards OST and surcharge. 4. In W.P.(C) No.2233 of 2017 by the same Petitioner, the challenge is to an identical notice dated 27th December 2016 and the consequential re-computation order dated 30th January 2017 for the period 1st April 2001 to 31st December, 2001. The demand for OST and surcharge for this period was Rs. 16,79,686/-. 5. While directing notice to issue in these petitions on 27th March 2017, this Court passed an interim order staying the impugned demands and operation of the notice dated 11th January 2017 challenged in W.P.(C) No.2225 of 2017. 6. This Court has heard the submissions of Mr. Jagabandhu Sahoo, learned Senior Advocate appearing for the Petitioner and Mr. Sunil Mishra, learned Additional Standing Counsel for the Opposite Parties-Department. 7. The background facts are that for the year 2000-01, the Petitioner, a registered dealer under the OST Act, was assessed by the Sales Tax Officer (STO), Cuttack-II Circle under ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to the writ petition filed by the M/s. Bajaj Auto Ltd as well as the writ petition filed by the present Petitioner in relation to the levy of surcharge under the OST Act for the period 2003-04. When the Department challenged the judgment of this Court in Bajaj Auto (HC-1) in the Supreme Court, it also challenged the same common judgment in so far as it related to the present Petitioner for the period 2003-04 in Civil Appeal Nos.5913-5920 of 2008. Therefore, when the Supreme Court by its judgment dated 28th October 2016 in Bajaj Auto (SC) reversed the judgment of this Court in Bajaj Auto (HC-1), it also reversed the judgment of this Court in so far as it related to the present Petitioner for the period 2003-04. 13. This much has been admitted by the Petitioner itself in paragraph 3(h) in W.P.(C) No.2229 of 2017 and paragraph 3 (h) in W.P.(C) No.2233 of 2017. 14. The grievance of the Petitioner is that the Department cannot on the basis of the above judgment in Bajaj Auto (SC) seek to reopen the computation of surcharge for the periods 2000-01, 2001-02 and 2002-03. Mr. Sahoo, learned Senior Advocate for the Petitioner, submits that the earlier orders granting refund to the P....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rissa). According to him the present Petitioner stands on a different footing since the judgment of this Court in Bajaj Auto (HC-1), which was common to the present Petitioner for the period 2003-04 was in fact challenged before the Supreme Court and was reversed by it in Bajaj Auto (SC). 17. The above submissions have been considered. It should be noted at the outset that there are two distinct categories of cases in which re-computation orders had been passed by the Department consequent upon the judgment of the Supreme Court in Bajaj Auto (SC) (supra). One category of cases is where the Department did not question the decision of this Court in Bajaj Auto (HC-1) qua an Assessee before the Supreme Court, or the orders granting refund to such Assessee on the basis of this Court's judgment in Bajaj Auto (HC-1) but still went ahead and issued re-computation orders after the judgment of the Supreme Court in Bajaj Auto (SC). This category includes M/s. Neelam Motors (supra) and M/s. Seetal Automobiles (supra). In those cases, this Court has by the aforementioned orders set aside the re-computation orders since the earlier orders granting those Assessees refunds had become final. 18. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as the limitation is concerned, considering that the decision of the Supreme Court was rendered on 28th October, 2016, the re-computation orders having passed not very long thereafter, in December 2017, and in the absence of any specific period of limitation prescribed for re-computation, it cannot be said that the said orders are time barred." 22. The facts in Tripura Ispat (supra) are closer to those in M/s. Neelam Motors (supra). In fact the legal position explained there has been followed by tis Court in M/s. Neelam Motors (supra). Likewise, the decisions relied upon by the Tripura High Court in Tripura Ispat viz., Collector of Central Excise v. Flock (India) Pvt. Ltd (2000) 6 SCC 650 and Priya Blue Industries Ltd. v. Commissioner of Customs, AIR 2004 SC 5115 would have no application as far as the present case is concerned. 23. Turning to the decision in Deputy Commissioner of Income Tax and Ors. v. Simplex Concretes Piles (India) Ltd. (supra), the Court again finds that it turned on its own facts. The observation that "the subsequent reversal of the legal position by the judgment of the Supreme Court does not authorize the Department to reopen the assessment, which stood cl....