TaxTMI 
TaxTMI 
2025 (11) TMI 300
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....e that the appellant had set up a unit in Sikkim and opted to avail of the benefit of exemption Notification No.56/2003 dated 25.06.2003. This notification granted exemption from duty equivalent to the duty paid by the manufacturer, other than the amount of duty paid by utilization of CENVAT credit. Subsequently, the said Notification was amended by Notification No.21/2008 dated 27.03.2008 and Notification No. 36/2008 dated 10.06.2008, which granted exemption from duty equivalent to the value addition undertaken in the manufacture of the final goods in the concerned unit. This change effectively meant a reduction in the exemption benefit to 56% as against 100%. The Notification was applicable to new units which commenced commercial production on or after 23.12.2002 but not later than 31.03.2007. The Notification No.21/2007 dated 25.04.2007 had also been issued to cover new units commencing commercial production on or after 01.04.2007 but not later than 31.03.2017. This Notification was later amended by Notification No.36/2008 ibid. 2.1. The appellant commenced implementation of the project in 2005-2006 employing about 100 employees and made an overall investment of Rs.20.42 Cr. ....
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....of commencement of commercial production of the said appellant, a letter vide C. No. V(18)07/Refund/CE/Sun-754/Gtk-Divn/16-17/2848 dt.05.07.2016 was issued to the Superintendent, Central Excise & Service Tax Gangtok Range seeking report on these two issues. 3.2. The Range Superintendent vide his letter under C. No. V(30)46/CE/SPLL/GTK/2016/438 dt.14.07.2016 informed that the Central Excise Registration was issued to the appellant on 17.01.2007 and the intimation of commercial production by the appellant was given on 17.04.2009 informing the date of commercial production as 20.04.2009. 3.3. From the above, it appeared to the Revenue that as per Clause 3(i) &(ii) of the said notification, the unit/units availing the benefit of the said notification has/have to first fulfil the condition that the said unit is a new industrial units which have commenced commercial production on or after 23rd day of December, 2002 but not later than 31st day of March 2007 or it should be an industrial unit(s) existing before the 23rd day of December, 2002 but which have undertaken substantial expansion by way of increase in installed capacity by not less than 25 per cent on or after the 23rd day o....
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....ions mainly challenged the validity of the amending notifications changing the criteria to 'value addition'. The Hon'ble High Court in Paragraph 87 of their Order dated 21.11.2017 held as follows: "The facts and circumstances of the present writ petitions, therefore, squarely falls within the parameters of the doctrine of promissory estoppel and that it would be unconscionable on the part of the respondent No. 1 to shy away from it without fulfilling its promise. The relief that must, therefore be granted on the facts of the present case is that for the period declared vide Notification No. 20/2007 the petitioner would be entitled to the excise duty exemption as promised therein. Consequently, impugned Notification Nos. 20/2008 and 38/2008 are liable to be quashed to the extent they curtail and whittle down the 100% excise duty exemption benefit as promised vide Notification No. 20/2007 and is hereby quashed. All impugned All impugned orders/demand notices/show cause notices which are against the afforested declarations of law are also quashed." In Paragraph 86 of the same order, the Hon'ble Court also observed as follows: "86. In view of the above, it ....
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....duty already refunded, meaning thereby, the cases in which the excise duty is already refunded prior to the subsequent notifications/industrial policies impugned before the respective High Court, they are not to be reopened. However, it is further CLARIFIED that the pending refund applications shall be decided as per the subsequent notifications/industrial policies which were impugned before the respective High Courts and they shall be decided in accordance with the law and on merits and as per the subsequent notifications/industrial policies impugned before the respective High Courts. All these appeals stand disposed of accordingly. NO COSTS." 6. Adjudicating the said Show Cause Notice, the respondent has passed the impugned order dated 20.07.2021, confirming the demand of Rs. 82,84,25,639/- against the appellant under Section 11A (10) of Act, along with interest on the said amount under Section 11AA of the said Act. 6.1. The present appeal has been filed by the appellant in respect of this order. 7. The Ld. Counsel appearing on behalf of the appellant submits that following the Order dated 26.03.2014 passed by the Commissioner, wherein the respondent has withdrawn the fa....
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....udgments/orders of various High Courts, which includes the judgment of the Sikkim High Court dated 21/11/2017, stand quashed and set aside. If the Apex Court had sought to decide only the promissory estoppel issue, they would have used the expression 'in so far as it concerns the promissory estoppel issue'. Accordingly, the Ld. Special Counsel submitted that the entire judgment of the Sikkim high Court stands quashed and set aside. Hence, the impugned order is not contrary to the Judgment of the Sikkim High Court. (ii) Regarding inadvertent mentioning of the Notification No. 56/2003 instead of Notification No. 20/2007, the Ld. Special counsel submits that the argument of the appellant that they have inadvertently mentioned the notification No. 56/2003 is not all acceptable. The appellant started the project in 2005 itself, when Notification No. 56/2003 was in operation. At that time, the appellant could never have anticipated that there would be another notification. Besides, in April, 2009, the appellant opted for the benefit under Notification No.56/2003. By their letter dated 22/10/2011, the appellant have informed the jurisdictional officer that they would avai....
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....uty taken under Notification No. 56/2003 is not admissible because the commercial production of appellant's Unit I began on 20/4/2009 i.e. after the due date of 31/3/2007 prescribed under the said notification. In fact, all refunds sanctioned to the appellant were inadmissible on account of this reason. (ix) According to the appellant, duty demand relating to refunds pertaining to the period from March, 2014 to September, 2014 are beyond the normal period of 2 years and hence, it is not sustainable. In this regard, the Ld. Special counsel submits that the first refund in this case was sanctioned on 11/2/2015 and the last refund was sanctioned on 20/5/2016. The SCN was issued on 19/10/2016. W.e.f. 14/5/2016, the time limit for raising a demand of duty, which has been refunded erroneously, is 2 years from the relevant date, which in this case is the date of such refund. Since the SCN was issued on 19/10/2016, the period of demand could go back to 20/10/2014. Hence, the respondent has rightly held that the demand is within normal time of 2 years. (x) Regarding interest payable on the amount of demand relating to erroneous refund, the Ld. Special counsel submits t....
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.... (1 of 1944), read with subsection (3) of section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957) and subsection (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 Schedule appended hereto, other than goods specified in Annexure appended hereto, and cleared from a unit located in the State of Sikkim, from so much of the duty of excise leviable thereon under any of the said Acts as is equivalent to the duty payable on value addition undertaken in the manufacture of the said goods by the said unit Para 1 In exercise of the powers conferred by sub-section (1) of section 5A of the Central Excise Act, 1944 (1 of 1944), 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 those mentioned in the Annexure and cleared from a unit located in the States of Assam or Tripura or Meghalaya or Mizoram or Ma....
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....al production between 23.12.2002 to 31.03.2007 are entitled for the benefit under Notification No. 56/2003-CE whereas the industries which have commenced their commercial production between 01.04.2007 to 31.03.2017 are entitled for the benefit under Notification No. 20/2007-CE. It is seen that the said benefit has continued for the industries which have initiated their commercial production from the period 01.04.2007 to 31.03.2017. We find that, as a matter of fact, the Notification No.20/2007 CE date 25.04.2007 has been issued, in order the continue the facility already given under the earlier Notification No.56/2003 CE dated 25.06.2003, so that the units starting their manufacturing activity after 31.03.2007, but before 31st March 2017, also get the same benefit which was given under Notification No.56/2003. The legislative intent is clear to continue the benefit for the next 10 years for the assesses operating in the Sikkim region. 10.2. We also note that both the aforesaid notifications were amended in the year 2008 to curtail the benefit granted and even the said amendment was also identical. Basically, Industrial Policy was announced in the year 2003 and to give effect to ....
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....n our opinion, the decision in Mediwell Hospital would not take away the right of the appellant to claim benefit under para 3 of the Table of exemption notification. If the appellant is not entitled to exemption under para 2, it cannot make grievance against denial of exemption. But if it is otherwise entitled to such benefit under para 3, it cannot be denied either. The contention of the authorities, therefore, has no force and must be rejected." (Emphasis supplied) 10.5. A similar rationale has been adopted by the Tribunal at Allahabad in the case of R.S. Infraprojects (Pvt.) Ltd. v. Commissioner of C.Ex., Ghaziabad [2017 (358) E.L.T. 1188 (Tri. - All.)], wherein the petitioner appellant had rectified their claim which was earlier made under Notification No. 108/95 to the correct Notification being Notification No. 6/2006-C.E. The Tribunal, while citing the reference of the judgement in Share Medical Care (supra), has held as under: - "5. Having considered the rival contentions we find that in the show cause notice no objection have been raised by Revenue regarding allowability of the benefit of exemption Notification No. 6/2006-C.E. Neither any objection is raised....
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....cation No. 49, instead of Notification No. 50. In the circumstances, the matter having been decided in favour of the assessee, there is no question of law involved, nor any question of fact to be gone in." 10.7. It may also be pertinent to note the observations of the Tribunal in the case of Tata Consulting Engineers v. Commissioner of C.Ex., Bangalore [2000 (124) E.L.T. 467 (Tri.)], which reads as follows: - "4. We have considered the submissions of both sides. It is now seen from the impugned order itself that the use of the goods in question were not disputed in the impugned order. On the contrary, the learned Collector himself has stated in the impugned order that M/s. Voltas had advised the appellants that the correct Notification is 93/76. He also gave a finding in the impugned order which reads as follows: "It is therefore clear that the appellants were entitled to the benefit of Notification 93/76". 5. He, therefore, came to the conclusion that the appellant is entitled to the benefit of Notification 93/76, which clearly goes to show that the use of the above said goods in terms of the above said Notification was also not disputed by him. The o....
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....le an appeal in terms of Section 35E of CEA 1944, which was not done in these cases. Therefore, the OIOs passed by the Asst / Dy. Commissioner had reached finality. This being so, the Revenue could not have taken recourse for recovering the refund so granted by issuing the Show Cause Notice under Section 11A. The Hon'ble Madras High Court in the case of Eveready Industries India Ltd. Vs CESTAT [Civil Misc Appeal No.973 of 2008 vide order dated 3.3.2016 - 2016 (337) E.L.T. 189 (Mad.) [03-03-2016], has gone into this issue in a detailed way and has held as under : "21. In support of his contention that Sections 11A and 35E are independent of each other, Mr. Rajnish Pathiyil, learned standingcounsel for the Department cited the following decisions : (i) Union of India v. Jain Shudh Vanaspathi Ltd. [(1996) 86 E.L.T. 460 (S.C.)] (ii) Asian Paints (India) Limited v. Collector of Central Excise [(1994) 54 ECR 173 (FB of the Tribunal) = 1994 (73) E.L.T. 433(Tribunal)] (iii) Asian Paints (India) Limited v. Collector of Central Excise [2002 (142) E.L.T. 522 (S.C.)] (iv) Sivananda Pipe Fittings Ltd. v. Superintendent of Central Excise [1998 (97) E.....
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....ing given effect to in several methods including adjustment or rebate of duty of excise, all of which are prescribed in Clauses (a) to (f) under the Proviso to sub-section (2) of Section 11B. 29. Sub-section (3) of Section 11B, which contains a non obstante clause, makes it clear that de hors any judgment, decree, order or-direction of the Appellate Tribunal or any Court or any other provisions of the Act, no refund shall be made except as provided by sub-section(2). 30. Therefore, the detailed procedure prescribed under Section 11B not only regulates the manner and form, in which, an application for refund is to be made, but also prescribes a period of limitation, method of adjudication as well as the manner, in which, such refund is to bemade. In simple terms, Section 11B is a complete code in itself. 31. Therefore, it is clear that what is required of an Assistant Commissioner or Deputy Commissioner under sub-section (2) of Section 11B is to adjudicate upon the claim for refund. The expression 'Adjudicating Authority' is also defined in Section 2(a) to mean any authority competent to pass any order or decision under this Act, but does not include the C....
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....er this Act. 36. Therefore, an order of recovery can be passed under Section 11A even by an Assistant Commissioner, as he happens to be a Central Excise Officer in terms of Clause (a) in sub-section (1) of Section 11A. In contrast, the processing of an application and the passing of an order on an application for a refund, can be made either by the Assistant Commissioner or by the Deputy Commissioner under sub-section(2) of Section 11B. Hypothetically, it would mean that a Deputy Commissioner can pass an order for refund under Section 11B(2) and an Assistant Commissioner can invoke the proceedings for recovery under Section 11A(1). 37. In other words, by reading the provisions of Section 11A in such a manner as the learned standing counsel would request us to do, we would be recognizing a power in a Subordinate Authority to invoke the power of recovery under Section 11A, despite the fact that a refund application has been adjudicated upon by a Superior Authority under Section 11B. We should keep this fact in mind before dealing with the interplay between Sections 11A and 35E. 38. As we have seen from the language employed in Section 35E, which we have ext....
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....visions. Therefore, the said decision, which was also confirmed by the Supreme Court in Asian Paints (India) Limited [2002 (142) E.L.T. 522], cannot be of any application. 42. No one can have a quarrel with the proposition that Sections 35E and 11A operate in different fields and are invoked for different purposes. We are merely concerned in this case with the interplay between Sections 11A and 35E. We are also concerned with what happened in the form of an adjudication under Section 11B. What happens in a case where an adjudication takes place under Section 11B did not at all fall for consideration in Asian Paints (India) Limited. 43. The decision of this Court in Sivanandha Pipe Fittings Ltd., was also on the point as to whether it is open to the authorities to take recourse to one remedy where several remedies are available. It is not the contention in this case that there are plural remedies available to the Department. The contention in this case is as to whether, after having allowed an adjudication under Section 11B to attain finality, there was any remedy open to the Department at all under Section 11A. Therefore, the decision in Sivanandha Pipe Fittings L....
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.... 49. In Madurai Power Corporation, this Court had an occasion to consider the interplay of Sections 11A and 35E of the Act. In the said case, show cause notices issued to the Corporation as to why excise duty payable on low sulphur heavy stock and furnace oil should not be demanded, came to be challenged. The show cause notices were issued under Section 11A of the Act. Reliance was placed by the assessee upon the orders passed by the adjudicating authority under the Rules of the year 2001 and it was contended that such an order could be rectified only through an appeal mechanism prescribed under Section 35E(2). As seen from Paragraph 11 of the decision, the contention of the assessee was that Section 11A does not contain a non obstante clause and that therefore, it cannot be invoked to nullify the appeal remedy available to the Department under Section 35E(2). 50. The very same argument now advanced by the Department to the effect that Sections 11A and 35E operate in two different independent fields was raised by them. After considering the issue elaborately and also after taking note of the decision in Asian Paints (India)Limited approved by the Supreme Court, th....
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....per officer sanctioning the refund to the appellant. We thus hold that the appellant is eligible for the refund and consequently, the demand on account of alleged erroneous refund in the impugned order is set aside. 16. In the result, we set aside the impugned order and allow the appeal filed by the appellant, with consequential relief, if any, as per law. The cross objection filed by the respondent also stands disposed of accordingly. (Order pronounced in the open court on 04.11.2025) ============= Document 1 à¤à¤¾à¤°à¤¤ सरकार GOVERNMENT OF INDIA केनà¥à¤¦à¥à¤°à¥€à¤¯ उतà¥à¤ªà¤¾à¤¦ शà¥à¤²à¥à¤• à¤à¤µà¤‚ सेवा कर , उपायà¥à¤•à¥à¤¤ का कारà¥à¤¯à¤¾à¤²à¤¯ OFFICE OF THE DEPUTY COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX, गंगटोक पà¥à¤°à¤®à¤‚डल सिलीगà¥à¤¡à¤¼à¥€ केनà¥à¤¦à¥à¤°à¥€à¤¯ राज....
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....•à¤¤à¥‡ हैं. केनà¥à¤¦à¥à¤°à¥€à¤¯ उतà¥à¤ªà¤¾à¤¦ शà¥à¤²à¥à¤• अधिनियम 1944 की धारा 3. Appeal should be filed in duplicate in form RA-1 vide Rule 3 of the Central Excise (Appeal) Rules 2001 and shall be accompanied by a copy of the order or decision appealed against which should bear a court stamp as below. (i) ; If the amount of value of the subject matter is Rs. 50/- or less than Rs. 50/- ..... 40 Paisa (ii) If the amount of value of the subject matter exceeds Rs. 50/ -... Paisa. 75 केनà¥à¤¦à¥à¤°à¥€à¤¯ उतà¥à¤ªà¤¾à¤¦ शà¥à¤²à¥à¤• (अपील)नियम २००१ की धारा ३ के अनà¥à¤¸à¤¾à¤° अपील फरà¥à¤® FA1 में करना हैंअपील करते समय इस C.No_....