EC & SHEC already refunded cannot be revoked later co-laterally by Authorities: HC

Topcem India Vs Union Of India And 3 Ors (Gauhati High Court)

Conclusion: Education Cess and Secondary and Higher Education Cess which have already been refunded in terms of earlier decision in‘M/S SRD Nutrients Private Limited’,  could not be revoked co-laterally by a Quasi Judicial Authority of the Department without taking recourse to the statutory and/or judicial remedies available to the Department.

Held: HC held that the refund granted/sanctioned earlier in terms of the Judgment of the Apex Court rendered in “M/S SRD Nutrients Private Limited” as well as in terms of orders passed by this Court directing such refunds of Education Cess and Secondary and Higher Education Cess in terms of “M/S SRD Nutrients Private Limited”,  could not be revoked co-laterally by a Quasi Judicial Authority of the Department without taking recourse to the statutory and/or judicial remedies available to the Department. In view of dismissal of the earlier review petition filed by the Department against the Judgment of the Apex Court in “M/S SRD Nutrients Private Limited” and also in view that no appeal or review having been preferred against orders of this Court directing entitlement of refund of Education Cess and Secondary and Higher Education Cess to assessees, the issue between the parties to the lis having attained finality, the later Judgment of the Apex Court in “M/S Unicorn Industries” holding “M/S SRD Nutrients Private Limited” to be per incuriam, would not permit the Department to unilaterally revoke or re-open the issue without taking recourse to the remedies available to them before a judicial forum. Such actions initiated by issuance of the impugned show cause notices, if permitted, would amount to revoking the earlier orders passed by the departmental officers exercising Quasi Judicial powers unilaterally and which action could not be permitted in view of the law laid down by the Apex Court in “Abdul Kuddus”.

FULL TEXT OF THE HIGH COURT ORDER /JUDGEMENT

Heard Dr. A. Saraf, learned senior counsel assisted by Mr. P. Das, learned counsel for the petitioner in WP(C) No. 2918/2020, WP(C) No. 1366/2020, WP(C) No. 2916/2020, WP(C) No. 2920/2020, WP(C) No. 2926/2020, WP(C) No. 2940/2020, WP(C) No. 3155/2020, WP(C) No. 3156/2020, WP(C) No. 3237/2020, WP(C) No. 3298/2020, WP(C) No. 3372/2020, WP(C) No. 3464/2020, WP(C) No. 3763/2020, WP(C) No. 4031/2020, WP(C) No. 4035/2020, WP(C) No. 4046/2020 and WP(C) No. 4194/2020.

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