TaxTMI 
TaxTMI 
2021 (12) TMI 179
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....anies Act and the petitioner claims to be one of the larger manufacturing plants at Kutchch, District Gujarat. It manufactures the excisable products such as Electric Energy Saving Lamp, Vitrified Tiles, Quartz Clock, etc. falling under Chapter 69, 85 and 91 of the Central Excise Tariff Act, 1985. The petitioner NO. 2 is a shareholder and Director of the petitioner No.1-Company. 2.2 Massive earthquake in the State of Gujarat and particularly, in the District of Kutch in the year 2001 led the Central Government to issue the Notification No. 39/2001-CE dated 31.07.2001 granting exemption to excisable goods other than those specified in the Notification, cleared from units in Kutch. The said Notification was amended from time to time and the petitioner's unit since is located in the District Kutch, it availed the benefits of the said Notification. 2.3 The petitioner had filed refund claims pursuant to the amendment in the said Notification in respect of Central Excise Duty, Education Cess and Secondary & Higher Secondary Education Cess ('ECSHEC' hereinafter) for the period from June 2007 to March 2008. It was partially sanctioned by the Assistant Commissioner, Bhuj, but rejected the....
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....partment has not preferred any appeal and has accepted the order of Commissioner (Appeals). 2.10 The petitioners, therefore, filed refund application in the office of the respondent No.2 seeking refund of sum of Rs. 54,10,810/- being the amount of ECSHSEC from June 2007 to March 2008. 2.11 On ascertaining the status of the order dated 19.12.2018 passed by the Commissioner (Appeals), the excise department, cleared by way of pre-audit of the department, refund claim and this had been also reflected in a subsequent refund order dated 01.04.2019 passed by the respondent No.2. 2.12 After about one and half years, respondent No.2 issued a show cause notice dated 08.10.2020 upon the petitioners proposing to recover the amount of Rs. 54,10,810/- which was refunded to the petitioner in respect of ECSHSEC along with interest. The only basis according to the petitioners, for issuance of such show cause notice is that the Notification No.39/2001 as amended provides only for exemption of duties of excise and additional duties of excise and therefore, ECSHSEC is levied by the Government under the relevant Finance Acts, and the same would not be covered by the said Notification. It also sought....
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....), dated 8.10.2020 issued by the respondent No.2, essentially on the ground that the same is QE GUJARAT issued without any authority of law and in clear disregard to the binding precedents with the following prayers: "18. A. This Hon'ble Court be pleased to issue a writ of or in the nature of mandamus or a writ of or in the nature of prohibition or a writ of or in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the show cause notice bearing No.IV/9 10/ SCN/Ajanta/Anjar-Bhachau/2020-21 (DIN 20201064WX00007W3921) dated 8.10.2020 issued by the respondent No.2 Annexure E hereto; B. Pending admission, hearing and final disposal of this petition, your Lordships be pleased to stay and suspend the operation and implementation of the show cause notice bearing No.IV/9-10/SCN/Ajanta/Anjar-Bhachau/2020-21 (DIN 20201064WX00007W3921) dated 8.10.2020 issued by the espondent No.2 at Annexure E hereto and be further pleased to restrain the respondent No.3 from proceeding further in any manner in regard to the adjudication or recovery of the demands raised by way of the said show cause notice; C. Ex parte ad interim relief in term....
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....nal Central Excise are provided under the Notification No.39/2001 and Education Cess and Secondary & Higher Secondary Education Cess would not be covered under the said Notification. 8. The petitioner is aggrieved by the fact that when there is no challenge to the order of Commissioner (Appeals), Rajkot dated 18.12.2018 and other orders, which have all attained finality, this initiation of the show cause notice is wholly without jurisdiction. The petitioner is, therefore, before this Court with the aforementioned prayers. 9. We have heard learned advocate, Ms.Amrita Thakore, who has taken us through various decisions of the Apex Court as well as of this Court. She has emphasised that the judicial discipline also would require to give effect to the order of the higher appellate authorities and not to once again initiate the actions of recovering the very refund claim, which has been given to the petitioner after a long drawn battle. 10. Issue Notice for final disposal, returnable on 8.3.2021. Interim relief in terms of paragraph 18.B. is granted, till the returnable date. Learned Central Government Standing Counsel, Mr.Parth Divyeshvar waives service of Notice for and on be....
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.... of the authorities, there has to be a regiment governing judicial discipline whereby again, any subsequent event cannot upset that discipline and the order which has been passed bearing in mind the law which was prevalent at the relevant time. According to her, as there is a well known principle of finality of judicial decision, which is one of the essential ingredients upon which the administration of justice rests. 5.1 Learned advocate, Ms.Amrita Thakore has relied on the following decisions in support of her detailed submissions: Sr No. Judgment 1 Union Of India Versus Kamlakshi Finance Corporation Ltd, reported in 1991 (55) ELT 433 (SC) 2 Commissioner Of Central Excise, Kanpur Versus Kothari Products Ltd., reported in 2008 (229) E.L.T. 12 (S.C.) 3 Commissioner Of Customs, New Delhi Versus Texcomash Export, reported in 2015 (322) E.L.T. 601 (S.C.) 4 Union Of India Versus Vicco Laboratories, reported in 2007 (218) E.L.T. 647 (S.C.) 5 Claris Lifesciences Ltd. Versus Union Of India, reported in 2013 (298) E.L.T. 45 (Guj.) 6 Claris Lifesciences Ltd. Versus Union Of India, reported in 2014 (305) E.L.T. 497 (Guj.) 7 Lubi Industries Llp Versus Union Of India, reported....
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....der dated 10.08.2009 and 09.11.2009 remand of the matter to the adjudicating authority. 10.06.2010 Petitioner approached Adjudicating Authority. Deputy Commissioner Central Excise Sanction of the refund claim, but denial Rs. 54,10,810/- pertaining to ECSHSEC. 06.08.2010 Petitioner approached the Commissioner of Appeals. Commissioner of Appeals Allowed the same and granted both EC & SHSEC relying on the Circular dated 10.08.2004 and another Circular dated 08.04.2011 22.01.2019 Petitioner filed refund application seeking refund of Rs. 54,10,810/-. Assistant Commissioner (Audit) This was cleared by per-audit of the department. 29.03.2019 Commissioner of Appeal's order dated 19.12.2018 was challenged by the petitioner to the extent it rejected the part of refund claim. CESTAT, Ahmedabad Pending, no benefit to the petitioner 01.04.2019 Assistant Commissioner, Central GST after observing that the Commissioner (Appeals) had allowed the appeal of the petitioner related to EC & SHSEC. Assistant Commissioner, Central GST. The said order had accepted by the department. 08.10.2020 Subsequent decision of the Supreme Court in case Unicorn Industries vs. Union of India has b....
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.... as to why the order of Collector (Appeals) was not followed. The assessee also placed before him the decision of the CESTAT in case of another party having similar facts. He distinguished the same observing that the decision had not been agreed to by the Department which had filed an appeal to the Supreme Court. 11.4 In a Writ Petition, the Bombay High Court quashed the order of the Assistant Collector and directed the department to allocate the matter to a competent officer to pass a proper order. The Union of India preferred an appeal before the Apex Court, where the officer concerned was defended by the learned Additional Solicitor General that in passing severe strictures against him, the learned judges had erred. The Apex Court held that the officer was not actuated by any mala fides in passing the impugned order. The impression or anxiety of the Assistant Collector of the department losing the revenue also was not a remedy available with him. The Court relied on Section 35 E that it confers adequate powers on the department to resolve or rectify the issue. However, no amount of anxiety to safeguard the interest of revenue would relieve him of obligation to follow judicial d....
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....dealt with this aspect at some length, because it has been suggested by the learned Additional Solicitor General that the observations made by the High Court, have been harsh on the officers. It is clear that the observations of the High Court, seemingly vehement, and apparently unpalatable to the Revenue, are only intended to curb a tendency in revenue matters which, if allowed to become widespread, could result in considerable harassment to the assessee-public without any benefit to the Revenue. We would like to say that the department should take these observations in the proper spirit. The observations of the High Court should be kept in mind in future and utmost regard should be paid by the adjudicating authorities and the appellate authorities to the requirements of judicial discipline and the need for giving effect to the orders of the higher appellate authorities which are binding on them." 11.6 Thus, the emphasis on the part of the Apex Court is to observe the judicial discipline and the appellate authorities to insist on the judicial discipline to be observed for giving effect of the orders of the higher appellate authorities which are binding upon the adjudicating auth....
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.... excise duty and the equalised freight. The Central Sales Tax is also charged on the same. The appellants do not charge and recover any other amount over and above the amounts indicated in the respective sales invoices. In the proceedings also there is no such allegation raised either in the show cause notice or in the order-in-original." 7. This order of the Commissioner (Appeals) was confirmed by the Tribunal in appeal. Revenue did not carry any further appeal meaning thereby that it has attained finality. 8. In the present case, the Tribunal has set aside the order-in-original passed by the Commissioner and held that in view of the earlier decision given by the Tribunal, revenue was not justified in issuing a fresh show cause notice and the same was barred by limitation as well as by the principle of res judicata. The Tribunal has dismissed the appeal by observing thus : "All the facts and the evidence relied upon in the present proceedings were fully known to the departmental authorities when the seven show cause notices were issued to the appellants demanding duty of Rs. 6,09,75,357.23 covering the period from August, 1993 to July, 1995. There are no fresh investigati....
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....he challenge was made by the department to the said order of CESTAT. One of the reasons why CESTAT had chosen to not uphold the action of reopening the proceedings was because that according to it, would tantamount to questioning the order of the higher officials. The order of the Commissioner had merged into the order of revisional authority and therefore, the principle of res judicata also would apply. 13.2 The Apex Court held that the show cause notice could not have been issued under Section 28 of the Customs Act by the Commissioner for the re-opening of issue, which had been settled by the higher authority i.e. the Joint Secretary. 13.3 Apt would be to reproduce the relevant finding and observation of the Apex Court as follows: "5. Even if certain material came to the notice of the Commissioner, which became the basis for the show cause notice, the only proper course was to challenge the said order of the Joint Secretary by taking out other proceedings, as admissible in law. On this ground alone, we confirm the order of the CESTAT. However, at the same time, we give liberty to the appellant herein to take out appropriate proceedings, in accordance with law. It would be ope....
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....al adjudication would be necessary, interference is ruled out. 31. Case of the respondent that the classification of the said products having attained finality pursuant to the decision of this Court, the appellants have no jurisdiction to issue impugned show cause notice on the ground on which it has been issued and it virtually amounts to re-opening of the issue which stands concluded by the decision of this Court, and that therefore it is an abuse of process of law. The High Court after referring to the history of litigation rightly concluded that the matter stood concluded by judgments of this Court and the High Court in respondents' case. 32. In the earlier judgment this Court had given liberty to the Department in the following terms : "Although the adjudicating authority had found in the course of the hearing that the market survey indicated that the product in question was known as a cosmetic we do not go into the question as this was not the ground on which the show cause notice was issued. The show cause notices having proceeded on a misapprehension of the tests laid down in Shree Baidyanath's case, the same cannot be sustained. The appeals are accordingly dism....
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.... by the Department against the petitioners. The adjudicating authority having ruled against the petitioners, the matter was carried further in appeal. Finally, the Customs, Excise & Service Tax Appellate Tribunal, ("the Tribunal" for short) in the case of this very petitioners ruled in favour of the petitioners by an order dated 21-6-2010. In such order, the Tribunal held and observed as under :- "2. The issue that has arisen is whether the appellant is liable to pay education cess again on the amount which has been worked out by calculating the customs duty payable on the goods in respect of clearances made by 100% EOU to domestic tariff area. The lower authorities have held that even after arriving at the measure of Customs duty for working out the Central Excise duty payable, the education cess has to be levied once again. 3. Both sides agree that this issue is covered by the decision of this Tribunal in the case of M/ s. Sarla Performance Pvt. Ltd. - 2010-TIOL- 408- CESTAT Ahmedabad, wherein it was held that once the measure of Customs duty equivalent to Central Excise duty leviable on the like goods has been worked out, the question of levying education cess separately in r....
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....tral Excise Act, 1944. 8. The adjudicating officer acts as a quasi judicial authority. He is bound by the law of precedent and binding effect of the order passed by the higher authority or Tribunal of superior jurisdiction. If his order is thought to be erroneous by the Department, the Department can as well prefer appeal in terms of the statutory provisions contained in the Central Excise Act, 1944." 15.2 The Court for so holding relied on the decision of the Apex Court rendered in the case of Union of India vs. Kamlakshi Finance Corporation Ltd. reported in 1991 (55) E.L.T. 433 (S.C.) 16. The Court in case of Claris Lifesciences vs. Union of India, reported in 2014 (305) ELT 397 (Guj) was considering the petition preferred under Article 226 of the Constitution of India by the petitioner which was a Public Limited Company engaged in the business of manufacture of patent or proprietary medicines. The grievance on the part of the petitioner was in relation to the calculations of excise duties leviable on Domestic Tariff Area ("DTA" for short) DTA clearances made by Export Oriented Unit ("EOU" for short) on the ground that the education cess as well as secondary and higher edu....
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....ficer was reminded that he acts as quasi-judicial authority and is bound by the law of precedence and regarding the binding effect of the order of the higher authority which is the Tribunal in the instant case. It was held that if such order is found to be erroneous by the Department, it needs to prefer an appeal as per the statutory provisions contained in the Central Excise Act. The decision of the Apex Court rendered in Union of India v. Kamlakshi Finance Corporation Ltd. (supra) holds in unambiguous terms that the Revenue officers are bound by the decision of the appellate authorities. 26. Despite such clear and specific directions and authoritative pronouncements, act of issuance of show cause notice by the Deputy Commissioner is wholly impermissible and unpalatable and deserves to be quashed and struck down with a specific note of strong disapproval. The respondents simply could not have exercised the powers contained under the statute in such arbitrary exercise and in complete disregard to the pronouncement of this Court particularly reminding the Revenue authorities of the binding effect of decision of Tribunal on the identical question of law. This not only led to multi....
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....t Commissioner committed a serious error in ignoring the binding judgment of superior Court that too in case of the same assessee. The principle of precedence and judicial comity are well established in our legal system, which would bind an authority or the Court by the decisions of the Coordinate Benches or of superior Courts. Time and again, this Court has held that the departmental authorities would be bound by the judicial pronouncements of the statutory Tribunals. Even if the decision of the Tribunal in the present case was not carried further in appeal on account of low tax effect, it was not open for the adjudicating authority to ignore the ratio of such decision. It only means that the Department does not consciously agree to the view point expressed by the Tribunal and in a given case, may even carry the matter further. However, as long as a judgment of the Tribunal stands, it would bind every Bench of the Tribunal of equal strength and the departmental authorities taking up such an issue. An order that the adjudicating authority may pass is made appealable, even at the hands of the Department, if the order happens to aggrieve the Department. This is clearly provided under....
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....n of refund allegedly "erroneously granted", in absence of proof of passing of duty burden. The Court held that issuance of later show cause notice amounted to the adjudicating authority reviewing its earlier order. The impugned order crediting the amount to Consumer Welfare Fund, in effect and substance, amounted to setting aside earlier order, which was impermissible as adjudicating authority as the authority concerned has no power to review or sit in appeal over its earlier order. Proper course of action was for Department to seek review of earlier order. 18.1 Relevant findings and observations of this Court are as follow: "8. Sub-section (2) of Section 129D empowers the Commissioner of Customs to call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order under the Act for the purpose of satisfying himself as to the legality or propriety of any such decision or order and to direct such authority to apply to the Commissioner (Appeals) for the determination of such points arising out of the decision or order as may be specified by the Commissioner in his order. Sub-section (4) thereof provides for pre....
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....ggest that product could be as marketable. The Court held that permitting department to proceed with such show cause notice would be wholly futile, prejudicial to the assessee and amounts to abuse of process of law. The Court held that the second show cause notice was also without jurisdiction and hence, interference under Article 226 of Constitution of India was necessary. It has also further held that Alternative remedy is not a bar in case of inherent lack of jurisdiction or failure of natural justice or action being opposed to statutory provisions. 19.1 Relevant findings and observations of this Court are as follow: "37. We would now in view of the above conclusions, deal with the question of maintainability of the petition. It is undoubtedly true and well settled that the High Court would be loath to interfere in the show cause notice proceedings. The Apex Court has stated, time and again, that such interference at the show cause notice stage should be kept to the minimum. However, it is not inviolable rule and alternative remedy would not be a bar if there is inherent lack of jurisdiction or there is failure of natural justice or that the action is opposed to statutory pro....
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....titions challenging the decision of the Tribunal which looking to the controversy involved, was appealable before the Supreme Court. We, therefore, came to the conclusion that ordinarily though it may be open for the High Court to by-pass appellate remedy and entertain the writ petition directly ignoring such alternative remedy available, in the present case, petitioners must take the appeal route. 40. In the present case, facts are different. The petitioners have approached at a stage where show cause notice has been issued. Such show cause notice, we have held, is lacking inherent jurisdiction. Question of driving the petitioners to avail of alternative remedy, therefore, would not arise. 41. With respect to invocation of extended period of limitation, we find no substance whatsoever in the stand of the Department. The petitioners have been manufacturing the drug in question since years, utilizing intermediate chemical by way of captive consumption. Such process is known to the Department since decades. Contention of the petitioners is that such intermediate chemical is not a marketable goods and therefore, not exigible to excise duty. Whatever be the legal validity of such....
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....ection (1) of section 5A of the Central Excise Act, 1944 (1 of 1944), read with sub-section (3) of section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957) and sub-section (3) of section 3 of the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978), the Central Government being satisfied that it is necessary in the public interest so to do, hereby exempts the goods specified in the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) other than goods specified in the Annexure appended to this notification and cleared from a unit located in Kutch district of Gujarat from so much of the duty of excise or the additional duty of excise, as the case may be, leviable thereon under any of the said Acts as is equivalent to the amount of duty paid by the manufacturer of goods other than the amount of duty paid by utilization of CENVAT credit under the CENVAT Credit Rules, 2001: Provided that in the case of a unit having an original value of investment in plant and machinery installed in the factory below rupees twenty crore on the date of commencement of commercial production in that unit, the exemption c....
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....all have the meanings respectively assigned to them in those Acts or Chapter, as the case may be. 93. Education Cess on excisable goods. - (1) The Education Cess levied under section 91, in the case of goods specified in the First Schedule to the Central Excise Tariff Act 1985 (5 of 1986), being goods manufactured or produced, shall be a duty of excise (in this section referred to as the Education Cess on excisable goods), at the rate of two per cent, calculated on the aggregate of all duties of excise (including special duty of excise or any other duty of excise but excluding Education Cess on excisable goods) which are levied and collected by the Central Government in the Ministry of Finance (Department of Revenue), under the provisions of the Central Excise Act, 1944 (1 of 1944) or under any other law for the time being in force. (2) The Education Cess on excisable goods shall be in addition to any other duties of excise chargeable on such goods, under the Central Excise Act, 1944 (1 of 1944) or any other law for the time being in force. (3) The provisions of the Central Excise Act. 1944 (1 of 1944) and the rules made thereunder. Including those relating to refunds and ....
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.... tax stands exempted under the notification. Extending the same principle, where education cess has been refunded to exporters along with service tax, by virtue of exemption notifications where whole of service tax is exempt, the same need not be recovered." 7.6 In view of above, Education Cess and Secondary & Higher Education Cess were part of the Central Excise duty and since the central excise duty was exempted by way of refund, Education Cess and Secondary & Higher Education Cess would also be exempted by way of refund. This view finds support from the judgement of the Hon'ble Supreme Court in the case of SRD Nutrients Pvt. Ltd. reported as 2017 (355) ELT 481 (SC), wherein it has held that: "20. One aspect that clearly emerges from the reading of these two circulars is that the Government itself has taken the position that where whole of excise duty or Service Tax is exempted, even the Education Cess as well as Secondary and Higher Education Cess would not be payable. These circulars are binding on the Department. 21. Even otherwise, we are of the opinion that it is more rational to accept the aforesaid position as clarified by the Ministry of Finance in the afores....
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....und claim on 22.01.2019, after ascertaining the status of the order dated 19.12.2018 of the Commissioner (Appeals), the same had been allowed on the ground that the department had accepted the order of Commissioner (Appeals) and hence, the claim had been cleared by the pre-audit of the department. This has also been reflected in its refund order dated 01.04.2020 and the petitioner had also received back the said amount. Therefore, the impugned show cause notice once again of raising the very issue when the order of Commissioner (Appeals) has attained finality without any challenge by the department, which deserves indulgence. It is a judicial discipline which demands following the mandate of superior authority, even when it is a quasi judicial body as such discipline is an intigral part of this well laid down principle and deserves scrupulous observance by all concerned. No one is permitted to obliterate this well defined boundaries, even in a zeal to earn more revenue or profit the interest of the State as done by the respondent No.2. He also would not be permitted to rely upon the subsequent decision of the Apex Court rendered in case of Unicorn Industries vs. Union of India (sup....
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....duty of excise leviable under other enactments. This argument plainly runs counter to the very language of this notification. It is obvious that the exemption granted under this notification is in respect of "so much of the duty leviable thereon under item 16 of the First Schedule to the Central Excises and Salt Act, 1944 as is in excess of 15 per cent" and these words describing the nature and extent of the exemption on their plain natural construction, clearly indicate that the exemption is in respect of duty of excise leviable under the Central Excises and Salt Act, 1944 and does not cover any other kind of duty of excise. No more discussion is necessary in regard to this question beyond merely referring to the language of this notification." The appeals were allowed, and it was held that exemption was not available in respect of special duty of excise or additional duty of excise or auxiliary duty of excise. A three-Judge Bench in Rita Textiles Private Limited v. Union of India, 1986 SCC Supp. 557, has followed the decision of Modi Rubber Limited (supra). The decision in Modi Rubber Limited (supra) squarely covers the issue and is rendered by a Co-ordinate Bench. 39. Rule....
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....g an exemption to such additional duties in the nature of education cess and secondary and higher education cess, they cannot be said to have been exempted. The High Court was right in relying upon the decision of threeJudge Bench of this Court in Modi Rubber Limited (supra), which has been followed by another three Judge Bench of this Court in Rita Textiles Private Limited (supra). 41. The Circular of 2004 issued based on the interpretation of the provisions made by one of the Customs Officers, is of no avail as such Circular has no force of law and cannot be said to be binding on the Court. Similarly, the Circular issued by Central Board of Excise and Customs in 2011, is of no avail as it relates to service tax and has no force of law and cannot be said to be binding concerning the interpretation of the provisions by the courts. The reason employed in SRD Nutrients Private Limited (supra) that there was nil excise duty, as such, additional duty cannot be charged, is also equally unacceptable as additional duty can always be determined and merely exemption granted in respect of a particular excise duty, cannot come in the way of determination of yet another duty based thereupon....