Case Law Details

Case Name : Calcom Cement India Limited Vs Union of India (Gauhati High Court)
Appeal Number : Case No. WP(C)/2865/2021
Date of Judgement/Order : 19/05/2021
Related Assessment Year :
Courts : All High Courts

Calcom Cement India Limited Vs Union of India (Gauhati High Court)

Heard Dr. A Saraf, learned Senior counsel assisted by Mr. P Das, learned counsel for the petitioner. Also present Mr. SC Keyal, learned standing counsel for the respondent GST representing respondent Nos. 2 to 4 and Mr. SS Roy, learned CGC for respondent No. 1.

The petitioner has challenged an order dated 09.04.2021 passed by the Principal Commissioner, GST, Guwahati, the respondent No. 2 thereby rejecting an application of the petitioner seeking for special rate fixation on the ground of delay. The said order dated 09.04.2021 was passed vide order No. 01/SR(16-17 and 17-18)/PR.COMMR/2021-22. The other order challenged in this writ petition was issued by the Assistant Commissioner, Goods and Services Tax, Guwahati Division-II GST, respondent No. 3 dated 05.02.2021 addressed to the respondent No. 5, State Bank of India, Commercial Branch, Guwahati demanding an amount of Rs. 4,37,27,129/- the purported refund of 50% in terms of interim order passed by the Apex Court in the SLP filed by Union of India.

The petitioner set up an industrial unit at village Pipulpukhuri in the district of Morigaon and the said unit commenced production from 03.10.2010. The petitioner applied for registration of its unit under North East Industrial and Investment Policy (NEIIP) 2007 for availing benefit under the said Industrial Policy, 2007 including exemption of 100% Central Excise Duty which was granted by the General Manager, DIC, Nagaon. In terms of the said Industrial Policy, 2007 the Government of India published notification No. 20/2007-CE dated 25.04.2007 declaring exemption as per the Policy, 2007 of the Central Excise in respect of exciseable goods manufactured under the said units within the NE regions. Subsequently vide notification No. 20/2008 CE dated 27.03.2008 the refund/ exemption of excise duty was restricted to a maximum limit specified in the table annexed to the said notification dated 27.03.2008. There being violation of the Industrial Policy, 2007 various writ petitions were filed before this court learned Single Judge of this court set aside the notification dated 27.03.2008. The Union of India preferred Writ Appeal No. 243/2009 thereby challenging the decision of the learned Single Judge setting aside the notification dated 27.03.2008. During the pendency of the said writ appeal the petitioner also filed WP(C) 317/2014 challenging the said notification dated 27.03.2008. The Hon’ble Division Bench of this court vide order dated 20.11.2014 dismissed the writ appeal and allowed the WP(C) 317/2014 preferred by the petitioner and tagged with Writ Appeal No. 243/2009. The Union of India preferred SLP before the Apex Court thereby challenging the judgment and order passed by the Hon’ble Division Bench of this court. The Apex Court vide order dated 07. 12.2015 passed in SLP (Civil) No. 11878/2015 directed the present respondent Nos. 2 to 5 to release 50% of the amount due under the head of Central Excise to the petitioner against the solvent security as an interim measure. On the basis of the said interim order, the respondent No. 3 sanctioned refund of 50% of the entitled amount to the petitioner amounting Rs. 4,37,27,129/- vide order dated 29.03.2019.

It would not be out of place to mention that the Apex Court stayed the operation of the judgment and order passed by the Hon’ble Division Bench of this court subject to release of 50 % of the amount due to the various parties to the SLP including the petitioner. The Apex Court vide its judgment and order dated 22.04.2020 passed in Civil Appeal No. 2256-2263 of 2020 in the case of Union of India Vs. M/s VVF Ltd. allowed the appeal setting aside the judgment and order dated 20.11.2014 passed by the learned Single Judge and consequent order of the Hon’ble Division Bench and upheld the notification dated 27.03.2008 as lawful.

After the judgment passed by the Hon’ble Apex Court the respondent No. 3 vide demand cum recovery notice No. V(18)29/Refund/C.CIL/ACG-II/2017/254 dated 27.01.2021 directed the petitioner to pay back the refunded amount with applicable interest thereon. Being dissatisfied with the issuance of the said demand notice the petitioner submitted representation dated 04.02.2021 to the respondent No. 2 with a prayer requesting for fixing the special rate as per para 2(1)(i) of the notification dated 27.03.2008. During the pendency of the representation dated 04.02.2021, the respondent No. 2 issued an attachment notice to the respondent No. 5, Bank claiming that the Central Excise Duty amounting to Rs. 4,37,27,129/- was payable by the petitioner to the Central Government which is yet to be paid. The said letter was issued on 05.02.2021 by the respondent No. 2.

The petitioner thereafter preferred WP(C) No. 973/2021 seeking for direction from this court to the respondent No. 2 for disposal of the representation dated 04.02.2021 seeking for fixing of special rate as per the notification dated 27.03.2009. On the basis of the direction passed by this court the respondent No. 2 disposed of the said representation dated 04.02.2021 thereby rejecting the prayer made by the petitioner for fixing of special rate as per the notification dated 27.03.2008. The said order was passed by the respondent No. 2 vide order dated 09.04.2021. Being aggrieved by the said order dated 09.04.2021 by the respondent No. 2 the petitioner has preferred this writ petition challenging the said order and the grounds thereof.

Dr. Saraf submits that the ground in rejecting the prayer made by the petitioner in his representation dated 04.02.2021 that the prayer made by the petitioner was delayed is totally unacceptable. In support of the said contention Dr. Saraf relies the ratio in Shree Chamundi Mopeds Ltd Vs Church of South India Trust Assn, CSI Cinod Secretariat, Madras reported in (1992)3 SCC 1 whereby he wants to submit that the affect of an interim order staying the operation of the order under challenge cannot be equated with the quashing of an order. Quashing of an order results restoration of a position before it stood on the date of the passing of the order which has been quashed. On the other hand the stay of operation of an order does not lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the order has been wiped out from its existence. Relying the said ratio, it is his contention that on the strength of the interim order whereby the operation of the judgment and order of the Hon’ble Division Bench of this court was stayed was conditional that the respondent No. 2 would release 50% of the amount due to the petitioner on the account of Central Excise Exemption. It cannot be held that the order passed by the Hon’ble Division Bench was set aside and quashed on the date of passing the interim order by the Apex Court and as such the question of delay in seeking for special rate as per the notification dated 27.03.2008 does not arise. Further it is his contention that even if there was delay the said delay ought to have been condoned in view of the order passed by the Hon’ble Apex Court dated 23.03.2020 in Misc Appeal No. 03/2020 whereby limitation period prescribed for filing various petitions etc were extended. Accordingly, he sought for issuance of notice with an interim protection thereby staying the operation of the order dated 09.04.2021 of the respondent No. 2 and the subsequent attachment notice dated 05.02.201 addressed to the AGM, State Bank of India, Commercial Branch at Guwahati by the respondent No. 2.

Mr. Keyal on the other hand countering the submission of Mr. Saraf supported the finding of the respondent No. 2 as reflected in the order dated 09.04.2021. It is also his contention that after setting aside the judgment of the Hon’ble Division Bench by the Hon’ble Apex Court the notification dated 27.03.2008 has its force since 27.03.2008 and under such circumstances the petitioner claiming special rate for the year 2016-17 and 2017-18 as per notification dated 27.03.2008 in the year 2021 was rightly held to be delayed.

In view of the submissions of both the learned counsel, I am satisfied that the issue raised in this writ petition requires further hearing and accordingly let notice be issued. Mr. Keyal accepts notices on behalf of respondent Nos. 1 to 4. Mr. SS Roy accepts notice on behalf of respondent No. 1. Necessary extra copies be served on the learned counsel. The petitioner shall take steps on the rest of the respondents within a period of one week from today by way of registered post with A/D.

Notices are made returnable after four weeks.

Until further order, the operation of the order bearing No. 01/SR(16-17 and 17- 18)/PR.COMMR/2021-22 dated 09.04.2021 and the operation of the demand cum recovery notice/ attachment notice issued to the respondent No. 5 dated 05.02.2021 are stayed.

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