TaxTMI 
TaxTMI 
2021 (12) TMI 904
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....ime and to consider the same on merit. 3) The case of the petitioner is that their partnership firm is a manufacturing concern and pursuant to Industrial Policy Resolution, 1997, and North East Industrial and Investment Promotion Policy, 2007 the petitioner had set up an industrial manufacturing unit in Gouripur, North Guwahati. It is projected that the petitioner was availing excise duty exemption in terms of notification dated 25.04.2007. However, the said notification was amended vide notification dated 27.03.2008, whereby the value addition undertaken in the manufacture of goods under Area Based Exemption had been introduced and it is projected that in connection with goods manufactured by it, the petitioner became entitled to refund of central excise duty paid on value addition, which was 36% as per table under notification dated 27.03.2008 instead of 100% was hitherto available under notification dated 25.04.2007. Thereafter, notification no. 31/2008, 32/2008 and 38/2008 were issued to amend notification dated 25.04.2007. Aggrieved by the said notifications dated 27.03.2008 and 10.06.2008, the petitioner had filed a writ petition before this Court, being W.P. (C) 317/2014. H....
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....ereafter, apprehending coercive steps by the respondent authorities, the petitioner had approached this Court by filing W.P.(C) 1971/2021, amongst others, to keep in abeyance the coercive steps by the respondent authorities till disposal of their application. This Court by order dated 30.03.2021, while keeping the issue of maintainability open, directed the jurisdictional Commission of CGST, Guwahati to dispose of the same within four weeks. Accordingly, the respondent no. 4 by order dated 30.08.2021, held that the six applications filed by the petitioner were barred by limitation and thus, rejected the same. 5) The learned counsel for the petitioner has submitted that this Court by judgment and order dated 12.08.2021 in W.P.(C) 3569/2021 - M/s. Jyothy Labs Ltd. v. The Union of India & 2 others , had allowed the writ petition by issuing a direction upon the jurisdictional Commissioner to consider the application for fixing special rates. It is submitted that the Court had accepted the contention of the petitioner therein that as interim order by the Supreme Court of India was in favour of the petitioner till 22.04.2020 and therefore, they had no occasion to file application for sp....
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....within one month and in the said context, it is submitted that the petitioner herein had submitted its application only on 02.03.2021. It is also submitted that the applications for fixing special rates was dismissed, which is an appealable order. Accordingly, it is submitted that the petitioner is required to avail alternative remedy prescribed by law. In support of his submissions, the learned standing counsel for the respondent nos. 2 and 3 has placed reliance on the following cases, (i) Commissioner of Customs (Import), Mumbai v. Dilip Kumar and Company & Ors., (2018) 9 SCC 1, and (ii) Magadh Sugar & Energy Limited v. State of Bihar & Ors., (2021) 0 Supreme(SC) 517: 2021 STPC 10268 SC. 8) It is seen that this Court in the case of Magadh Sugar and Energy Limited (supra) , the Supreme Court of India, while dealing with issue of alternative remedy had observed as follows - 19. While a High Court would normally not exercise its writ jurisdiction under Article 226 of the Constitution if an effective and efficacious alternate remedy is available, the existence of an alternate remedy does not by itself bar the High Court from exercising its jurisdiction in certain contingencies. Th....
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....n the decision in Assistant Commissioner of State Tax v. M/s Commercial Steel Limited[Civil Appeal No. 5121 of 2021]. In State of HP v. Gujarat Ambuja Cement Ltd, (2005) 6 SCC 499 this Court has held that a writ petition is maintainable before the High Court if the taxing authorities have acted beyond the scope of their jurisdiction. This Court observed: "23. Where under a statute there is an allegation of infringement of fundamental rights or when on the undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess can be the grounds on which the writ petitions can be entertained. But normally, the High Court should not entertain writ petitions unless it is shown that there is something more in a case, something going to the root of the jurisdiction of the officer, something which would show that it would be a case of palpable injustice to the writ petitioner to force him to adopt the remedies provided by the statute. It was noted by this Court in L. Hirday Narain v. ITO [(1970) 2 SCC 355: AIR 1971 SC 33] that if the High Court had entertained a petition despite availability of alternative remedy and heard the parties on merits it would....
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.... frivolous- lex neminem cogit ad vana seu inutilia- the law will not force anyone to do a thing vain and fruitless. In other words, if exercise of jurisdiction by the tribunal ex facie appears to be an exercise of jurisdiction in futility for any of the stated reasons, then it will be permissible for the High Court to interfere in exercise of its jurisdiction. This issue is no longer res integra and has been settled by a catena of judgments of this Court, which we find entirely unnecessary to refer to in detail..." (emphasis supplied) 21. In Union of India v State of Haryana, (2000) 10 SCC 482 the assessing authorities imposed sales tax on the rentals charged for supply of telephones. Writ petitions were filed in the High Court challenging the levy. The writ petitions were dismissed on the ground that an alternative remedy of a statutory appeal was available. An appeal against these orders was filed before this Court. The appeal was allowed and the matter was remanded back to the High Court for determination since it involved a question of law on whether the supply of telephones amounted to sale. 22. It is not the case of the appellant that the respondents have miscalculated th....
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....ach other, forming so to say, enclaves within each other. The questions that arise for determination in that area are known as mixed questions of law and fact. These questions involve first the ascertainment of facts on the evidence adduced and then a determination of the rights of the parties on an application of the appropriate principles of law to the facts ascertained. To take an example, the question is whether the defendant has acquired title to the suit property by adverse possession. It is found on the facts that the land is a vacant site that the defendant is the owner of the adjacent, residential house and that he has been drying grains and cloth and throwing rubbish on the plot. The further question that has to be determined is whether the above facts are sufficient to constitute adverse possession in law. Is the user continuous or fugitive? Is it as of right or permissive in character? Thus, for deciding whether the defendant has acquired title by adverse possession the court has firstly to find on an appreciation of the evidence what the facts are. So far, it is a question of fact. It has then to apply the principles of law regarding acquisition of title by adverse pos....
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....Ltd. (supra) , this Court had final verdict in favour of the assessee. The operative part of the said judgment is quoted below:- "17. Without going into the aspect whether the requirement to submit such application within 30th September of the given financial year is a mandatory requirement or a directory requirement, what we take note of is that such a provision has been incorporated to streamline the process for submission of the application seeking for the fixation of a special rate to the value addition to manufactured goods. 18. We have to take note of that as long as there was a judgment of the Division Bench in WA No.243/2009 in favour of the petitioner interfering with the modification for exemption of excise duty and the matter thereafter was pending before the Supreme Court on an appeal with an interim order dated 07.12.2015 requiring a refund of the 50% of the amount of excise duty, the occasion had not arisen for the assesse to go further and seek for a fixation of a special rate in respect of the value addition to the manufactured goods and even if there would have been a determination of such special rate, the same would have remained ineffective and un-implementa....
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....of the given financial year would perhaps be not available for the respondent authorities for rejecting the application. 21. In the circumstance, we direct the Principal Commissioner, GST, Guwahati to consider the application of the petitioner dated 18.05.2020 seeking for fixation of a special rate to the value addition to the manufactured goods of the given financial year and decide the same as per law." 10) For the purpose of considering the prayer for interim relief, the Court finds that in the herein before quoted paragraphs of the case of M/s. Jyothy Labs Ltd. (supra) , this Court had categorically held that the requirement of requesting for fixation of a special rate in respect of value addition to the manufactured goods had arisen only after the final judgment of the Supreme Court of India on 22.04.2020. It is seen that by virtue of orders passed by the Supreme Court of India in Suo Motu W.P.(C) No.3/2020 and MA. No. 665/2021 arising out of the said case, the period of limitation, whether condonable or not stood extended from 15.03.2020 till 02.10.2021 and it was further provided in para-II of the order dated 23.09.2021 in M.A. No. 665/2021 as follows - "II. In cases wher....