Gauhati High Court
Hindustan Coca-Cola Beverages Pvt. ... vs Union Of India (Uoi) on 9 January, 2004
Equivalent citations: 2004(171)ELT458(GAU)
Author: D. Biswas
Bench: D. Biswas
JUDGMENT D. Biswas, J.
1. Heard Mr. P.K. Goswami, learned Senior Counsel for the petitioners and also Mr. B. Sarma, learned C.G.S.C.
2. This petition has been filed for refund of the excise duty amounting to Rs. 2,88,47,034 from May, 2001 to March, 2002 and Rs. 5,67,60,645/- for the period of April, 2002 to September, 2003. This refund has been claimed as per Government of India notification dated 8th July, 1999.
3. Exemption of Excise duty has been granted to the Industrial Units situated in the North Eastern States by the aforesaid notification dated 8th July, 1999. The relevant portion of the notification is quoted hereinbelow :-
3. The exemption contained in this notification shall apply only to the following kind of units namely :-
(a) New industrial units which have commenced their commercial production on or after the 24th day of December, 1997,
(b) Industrial units existing before the 24th day of December, 1997 but which have undertaken substantial expansion by way of increase in installed capacity by not less than twenty five per cent on or after the 24th day of December, 1997.
4. The petitioner No. 1 is a private limited company having its registered office at New Delhi and factory premises in the State of Meghalaya and is engaged in the business of manufacture and sale of aerated water. The petitioner company acquired the factory on 2-5-2000 and started its commercial production with effect from 15-5-2001. Thereafter, during the course of business, the company expanded the installed capacity of the factory beyond twenty five per cent as specified in the notification quoted above. Consequent upon such expansion, the company claimed refund of the excise duty already paid by them.
5. Mr. P.K. Goswami, learned Senior Counsel submitted that the Director of Industries, Meghalaya, Shillong has certified that the installed capacity of the factory has been expanded to 4608 to 9884 kilo litres per year. The Assistant Commissioner of Excise by the order dated 2-5-2002 rejected the claim of the company for refund of the excise duty raising doubts about the expansion. The company preferred an appeal before the Commissioner of Excise (Appeals) and the Commissioner of Excise (Appeals) by the order dated 2-8-2002 accepted the contention of the appellant company, allowed the appeal and directed refund of the excise duty. The Excise Department preferred an appeal before the Customs Excise & Gold (Control) Appellate Tribunal (CEGAT), Kolkata. The Appellate Tribunal by the order dated 16-9-2003 rejected the prayer of the Commissioner of Central Excise for stay of the order passed by the Commissioner of Appeals.
6. Mr. P.K. Goswami, learned Senior Counsel submits that since the prayer for stay has been rejected, the respondent authority has no option but to refund the amount. In support of this submission, Mr. Goswami, has referred to the circular issued by the respondent authority. Clause 3 of the aforesaid circular reads as follows :-
"(3) The cases where refund arises due to order of Commissioner (Appeals) or Commissioner of Central Excise/Customs and decision is taken to contest them before CEGAT. In such cases appeal/stay application should be filed expeditiously well before the expiry of stipulated period of three months (and not waiting for the last date of filing of appeal). However, no refund/rebate claim should be withheld on the ground that an appeal has been filed against the order giving the relief unless stay order has been obtained. It would be the responsibility of the concerned Commissioner to obtain stay order expeditiously where the orders passed by Commissioner (Appeals) suffer from serious infirmities and it involves grant of heavy refunds."
7. It would appear from the above circular that the claim for refund/rebate cannot be withheld in the absence of an order of stay by the appellate authority. In the instant case, as stated above, the learned Tribunal has rejected the prayer for stay. Therefore, on the strength of this circular, Mr. Goswami, submits that the petitioner company is entitled to refund.
8. I have also heard Mr. B. Sarma, learned Addl. Central Government Standing Counsel. I find no reason to disagree with Mr. Goswami, learned Senior Counsel that in view of the above provisions in the notification dated 8th July, 1999 that the refund/rebate of the excise duty paid cannot be withheld. It therefore follows that the petitioner company is entitled to refund of the excise duty already paid.
9. In the result, this writ petition is disposed of with a direction to the respondent authority to refund the excise duty as indicated above, after necessary verification, to the petitioner company within a period of three months from today on furnishing necessary undertaking by the petitioner company with the Commissioner of Central Excise/Customs and that the petitioner company shall refund the amount in the event the Department succeeds finally in the appeal pending before the appellate Tribunal at Kolkata. Interest at the rate of 10% for delayed payment as per provisions of Section 11 of the Central Excise Act on the aforesaid amount shall be calculated and paid, within the aforesaid lime frame. No costs.