TaxTMI 
TaxTMI 
2026 (7) TMI 1352
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....so steel pipe coating unit located at Nanakapaya, Taluka Mundra, District Kachchh. The steel pipes manufactured, are classifiable under Central Excise Tariff Heading 7305.90 and the pipes manufactured qualify for central excise duty exemption under notification No. 39/2001-CE dated 31.07.2001, which was issued by the respondent No. 1 by the Ministry of Finance to rehabilitate local population adversely affected by devastating earthquake by accelerating process of industrialization of the region to new industries in the shortest possible time framed soon after the earthquake in Gujarat in 2001. The petitioner was one of the entrepreneurs, who had immediately acted upon the appeals of the Central and State Government to set-up the new industrial undertaking at Nanakapaya. As per the Notification and Eligibility as per the notification dated 31.07.2001, the petitioner was entitled to the benefit of central excise duty exemption which was to be provided. The petitioner was entitled for repayment/refund of the central excise duty paid on finished excisable goods manufactured and cleared on the payment of duty of each month as per the said notification. 3. It is the case of the petiti....
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....ection 11A of the Central Excise Act, 1944 (for short "the Act") read with Section 11AB and 11AC of the Act. It is alleged that the petitioner has made willful misstatement and suppression of facts to claim refund, which has been assailed by the present writ petition. 6. The Coordinate Bench of this Court vide order dated 22.07.2010 passed in the present writ petition, while issuing rule had granted interim relief and stayed the show-cause notice dated 17.09.2008. The Coordinate Bench in the said order has specifically recorded that by the impugned show-cause notice issued by the Commissioner, Central Excise, Rajkot, the certificate dated 28.07.2003 issued by the committee formed under the notification dated 31.07.2001 has been questioned. It was recorded that prima facie the Commissioner, Central Excise, Rajkot, who has issued the show-cause notice has no jurisdiction to adjudicate on the validity of the said certificate. SUBMISSIONS MADE ON BEHALF OF PETITIONER 7. Learned Senior Advocate Mr. Santhanam appearing for the petitioner along with learned advocate Mr. Harshadray Dave, has questioned the jurisdiction of the respondent No. 3 in issuing the show-cause notice and q....
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....008, and for this entire period, the assessments of the excisable goods produced and cleared on payment of duty have been duly verified and accepted and have become final. He has pointed out various refund orders for the aforesaid period and has submitted that the Assistant Commissioner, upon verification of the report submitted by the Superintendent, Central Excise, Range-1, has sanctioned the refund amount, and it is not open for the respondent number 3 to reopen such assessment. While placing reliance on the judgment of the Supreme Court in case of CIT vs. Mahindra and Mahindra Limited, (1983) 4 SSC 392, it is submitted that the respondent No. 3 cannot question the certificate issued by the High Powered Committee pursuant to the recommendation of respondent No. 3, who was also the member of the High Powered Committee, and upon having been fully satisfied about the correctness, respondent No. 3 cannot take a volte face, after a period of five years and issue show-cause notice by alleging suppression of facts and misleading of the officers of the respondents. It is submitted that the investigation done by respondent No.2 is nothing but a farce, and a false case has been fabricated....
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.... petitioner has availed the refund, without establishing a complete new unit and by fraudulent means it was shown that the goods were manufactured in their pipe coating unit. She has submitted that it was also found that the concerned person who was working at the relevant time could identify only one item in respect of plant and in his statement dated 18.07.2008, he could not furnish the certificate relating to the certificate in support of his claim that superior kerosene oil was used in diesel generator sets. It was submitted that looking to the electricity consumed, it was not possible to believe that the new plant has been set within a short period of 3 months. It is submitted that a thorough investigation revealed that the certificate granted on 28.07.2003 by the committee about completion of plant was obtained by misleading the departmental officers. While referring to the details of the facts as incorporated in the show-cause notice, it is submitted that the petitioner had done the over-invoicing of the plant and machinery for Air Conditioning (AC) and Central Water Chilling Plant (CWCP) unit and the concerned officers were misled at the relevant time. Thus, it is submit....
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....the Central Government issued a notification dated 31.07.2001 for exemption to the excisable goods and cleared from the units in Kachchh district of Gujarat. It appears that the said notification has been issued to invite the entrepreneurs to come and set-up new industries in the earthquake hit areas, which rocked Gujarat in 2001. The petitioner is one of the entrepreneurs, who immediately acted upon the appeals of the Central and State Governments and set-up a new industrial undertaking located at Nanakapaya, Taluka Mundra, District Gujarat and made total investment in plant, machinery, equipments and infrastructure from 2001-2002 onwards till March, 2008, the aggregate sum of which is Rs. 1,30,68,88,914/-. The petitioner set up the industrial units, the first of making steel pipes and the second for steel pipe coating, and completed the erection and installation of plant and machinery besides acquiring land and providing building infrastructure facilities. The petitioner informed about the installation of the capital equipments for the manufacture of excisable goods to the respondent Nos.4 and 5 on 10.07.2003. 16. On 15.07.2003, the respondent No. 3 through its Assistant Commi....
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....t to the following conditions, namely: (i) It shall apply only to new industrial units, that is to say, unit which are set up on or after the date of publication of this notification in the Official Gazette but not later than the 31st day of July, 2003; (ii) In order to avail of this exemption, the manufacturer shall produce a certificate from a Committee consisting of the Chief Commissioner of Central Excise, Vadodara and the Principal Secretary to the Government of Gujarat, Department of Industry, to the jurisdictional Assistant Commissioner or the Deputy Commissioner of Central Excise, as the case may be, that the unit in respect of which exemption is claimed is a new unit and has been set up during the time period specified in condition (i) above. (iii) Before effecting clearances under this notification, the manufacturer shall furnish a declaration regarding the original value of investment in plant and machinery installed in the factory as on the date of commencement of commercial production, to the Assistant Commissioner or the Deputy Commissioner of Central Excise, as the case may be. (iv) The manufacturer shall also produce a certificate....
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.... of July to 31st July, 2004. 19. The second certificate of the even date i.e. 28.07.2003 and has been issued by the committee, which certifies that the original value of investment in the plant and machinery in the factory of the petitioner M/s. Saw Pipes Limited is Rs. 22,18,06,081/- as on 11.07.2003. Prior to that on 16.07.2003, the Assistant Commissioner of Central Excise, Bhuj Division, vide its communication dated 16.07.2003 has informed the Joint Commissioner, Central Excise, Rajkot about setting-up of new unit and availing exemption sorry setting up of new unit. In this communication, the Assistant Commissioner of Central Excise has categorically recorded that on inspection of the premises, it is found that the main plant of anti-corrosion and concrete weight coating is ready to start production. The details of installed machinery in the plant are referred in paragraph No.4, which are 17 in numbers. In paragraph No.5 of the said communication, it is categorically mentioned that the entire electric system including five DG sets of 750 KVA each and sub-station are also in operation. The Commissioner has verified the investment and physically visited the site and concluded t....
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....t is recorded that the CWC plant was not in existence as on 6th October, 2003. Thus, it is alleged that the certificate dated 28.07.2003 issued by the High Powered Committee is procured by misleading the officers. 23. It is not disputed that the certificates dated 28.07.2003 issued by the Committee certifying the establishing of the new unit and valuation of the plant and machinery has been forwarded to the Respondent No. 3, however, the same were never doubted. The respondent No. 3 accepted the certificates, and thereafter has also processed the refunds after scrutiny of various documents as previously mentioned. The value, installation and utilization of plant and machinery was duly verified by departmental officers and by the Assistant Commissioner along with the Superintendent in the month of July, 2003, and again by independent surveyor appointed by the department in December, 2007. None of the officers have complained that the coating plant did not exist. 24. In our opinion the allegations about misrepresentation and fraud can only be examined by the High Powered Committee, formed under the subordinate/delegated legislation under the Act, which has issued the certificat....