TaxTMI 
TaxTMI 
TaxTMI 
2024 (9) TMI 550
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....liguri Commissionerate). 2. This appeal has been preferred by the Commissioner of Central Goods and Services Tax and Central Excise, Siliguri Commissionerate, under section 35G of the Central Excise Act, 1944 (hereinafter referred to "the Act of 1944"). 3. By the impugned final order, the learned Tribunal was pleased to allow the two appeals referred above in the following manner:- "8. We find that refund claims were sanctioned in the light of the decision of the Hon'ble Apex Court in the case of SRD Nutrients (supra) and thereafter the decision of the SRD Nutrients (supra) was over-ruled by the Hon'ble Apex Court in the case of Unicorn Industries (supra), it does not mean that at the time of sanctioning of refund claim, the decision of the Hon'ble Apex Court in the case of SRD Nutrients was valid. As the decision of Hon'ble Apex Court in the case of SRD Nutrients (supra) during the relevant period holding the field, in that circumstances, the refund claims were rightly sanctioned to the appellants as held by the Hon'ble High Courts in the abovecited decisions namely Tripura Ispat vs. UOI (supra), therefore, we hold that the show cause notice issued to the appellant are not su....
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....ow cause why he should not pay the amount specified in the notice; (b) the person chargeable with duty may, before service of notice under clause (a), pay on the basis of,- (i) his own ascertainment of such duty; or (ii) the duty ascertained by the Central Excise Officer, the amount of duty along with interest payable thereon under Section 11AA. (2) The person who has paid the duty under clause (b) of sub-section (1), shall inform the Central Excise Officer of such payment in writing, who, on receipt of such information, shall not serve any notice under clause (a) of that sub-section in respect of the duty so paid or any penalty leviable under the provisions of this Act or the rules made thereunder. (3) Where the Central Excise Officer is of the opinion that the amount paid under clause (b) of sub-section (1) falls short of the amount actually payable, then, he shall proceed to issue the notice as provided for in clause (a) of that sub-section in respect of such amount which falls short of the amount actually payable in the manner specified under that sub-section and the period of two years shall be computed from the date of receipt of information under sub-section (....
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....cise Officer shall determine the duty of excise payable by such person for the period of two years, deeming as if the notice were issued under clause (a) of sub-section (1). (10) The Central Excise Officer shall, after allowing the concerned person an opportunity of being heard, and after considering the representation, if any, made by such person, determine the amount of duty of excise due from such person not being in excess of the amount specified in the notice. (11) The Central Excise Officer shall determine the amount of duty of excise under sub-section (10)- (a) within six months from the date of notice where it is possible to do so, in respect of cases falling under sub-section (1); (b) within two years from the date of notice, where it is possible to do so, in respect of cases falling under sub-section (4). (12) Where the appellate authority or tribunal or court modifies the amount of duty of excise determined by the Central Excise Officer under sub-section (10), then the amount of penalties and interest under this section shall stand modified accordingly, taking into account the amount of duty of excise so modified. (13) Where the amount as modified by th....
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.... in the case where only interest is to be recovered, the date of payment of duty to which such interest relates. (c) Omitted by Act 20 of 2015, sec. 93 (iii) (C) (w.e.f. 14-5-2015). Explanation 2.- For the removal of doubts, it is hereby declared that any non-levy, short-levy, non-payment, short-payment or erroneous refund where no show cause notice has been issued before the date on which the Finance Bill, 2015 receives the assent of the President, shall be governed by the provisions of Section 11A as amended by the Finance Act, 2015." 8. A plain reading of section 11A, as quoted hereinabove, reveals that it makes a distinction between the cases of duties of excise not having been levied, paid, short-paid or short-levied, erroneously refunded, for reasons of fraud, collusion or any mis-statement or suppression of facts or contravention of any provisions of the Act or Rules made with the intent to evade payment of duty and in cases where none of these elements are present, under sub-section (1) of section 11A of the Act of 1944, where any such duty of excise has not been levied or short-levied or erroneously refunded for any reason other than the reasons of fraud or collusi....
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....urt which was correctly applied at the relevant time." 10. In this backdrop if one were to accept the submissions advanced by the learned Deputy Solicitor General of India, then all judgments rendered by all competent Courts - following judicial precedents laid down by the Hon'ble Supreme Court holding the field at that material point of time - would be set to naught if at a subsequent stage those judicial precedents are overruled by subsequent decisions of the Hon'ble Supreme Court. A total chaos would result and no lis would assume finality. This very fundamental principle was taken into consideration by the Hon'ble Supreme Court of India in a judgment and order dated 04th July, 2023, rendered in the case of Commissioner of CGST and Central Excise (J&K) vs. M/s Saraswati Agro Chemicals Pvt. Ltd. (Special Leave Petition (Civil) Diary No(s). 18051/2023). Relevant portion of the judgment and order dated 04th July, 2023, rendered by the Hon'ble Supreme Court of India, is quoted hereinbelow: - "With regard to the reference order made on 27.09.2021 on a miscellaneous application filed by the Revenue seeking to undo the judgment in M/s SRD Nutrients (P) Limited which was overruled i....
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....gh Court had raised the following question of law and answered it against the Revenue:- "Whether the assessee is liable to return the Education Cess and Secondary & Higher Education Cess on the changed view of law as subsequently laid down by the Full Bench of the Supreme Court in Unicorn Industries vs. Union of India reported in (2020) 3 SCC 492, overruling SRD Nutrients (P) Ltd. vs. CCE (Supra) on the basis of which the aforesaid cess was refunded to the Assessee." In our view the High Court has rightly answered the aforesaid question. The High Court in the impugned order while considering the judgment passed by this Court in SRD Nutrients (P) Limited (supra) as well as in M/s Unicorn Industries (supra) has observed in Paragraph 74 as under: "Applying the aforesaid principle in the cases at hand, since the assessee has been held entitled to the refund of the Educational cess and Secondary & Higher Educational cess on the basis of a judgment and order of the Supreme Court in case SRD Nutrients which was in vogue at the relevant time, the appellants are not entitled to make recovery of the said refunded amount on the basis of the subsequent decision of the Supreme Court re....