Gauhati High Court
Pdp Steels Ltd vs Union Of India And 2 Ors on 21 October, 2020
Author: Soumitra Saikia
Bench: Soumitra Saikia
Page No.# 1/5
GAHC010153262020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil) 1818/2020
1:PDP STEELS LTD
A COMPANY INCORPORATED UNDER THE PROVISION OF THE
COMPANIES ACT, 1956 AND HAVING ITS REGD. OFFICE AND FACTORY
SITUATED AT BONDA, NARENGI, GHY-26, ASSAM, AND IN THE PRESENT
PROCEEDING REP. BY SRI MISHRILAL RAJAK, THE AUTHORIZED
SIGNATORY OF THE PETITIONER COMPANY
VERSUS
1:UNION OF INDIA AND 2 ORS.
REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF FINANCE,
DEPTT. OF REVENUE, NORTH BLOCK, NEW DELHI
2:PRINCIPAL COMMISSIONER
GST AND CENTRAL EXCISE COMMISSIONERATE
GHY
GST BHAWAN
5TH FLOOR
KEDAR ROAD
MACHKHOWA
GHY-01
3:ASSTT. COMMISSIONER
GHY
DIVISION-II
GST BHAWAN
2ND FLOOR
KEDAR ROAD
MACHKHOWA
GHY-0
Advocate for the Petitioner : DR. A SARAF
Page No.# 2/5
Advocate for the Respondent : SC, GST
Linked Case : WP(C) 4046/2020
1:PDP STEELS LTD
A COMPANY INCORPORATED UNDER THE PROVISION OF THE COMPANIES
ACT
1956 AND HAVING ITS REGD. OFFICE AND FACTORY SITUATED AT BONDA
NARENGI
GHY-26
ASSAM
AND IN THE PRESENT PROCEEDING REP. BY SRI MISHRILAL RAJAK
THE AUTHORIZED SIGNATORY OF THE PETITIONER COMPANY
VERSUS
1:UNION OF INDIA AND 2 ORS
REP. BY THE SECY. TO THE GOVT. OF INDIA
MINISTRY OF FINANCE
DEPTT. OF REVENUE
NORTH BLOCK
NEW DELHI
2:PRINCIPAL COMMISSIONER
GST AND CENTRAL EXCISE COMMISSIONERATE
GHY
GST BHAWAN
5TH FLOOR
KEDAR ROAD
MACHKHOWA
GHY-01
3:ASSTT. COMMISSIONER
GHY
DIVISION-II
GST BHAWAN
2ND FLOOR
KEDAR ROAD
MACHKHOWA
GHY-01
Advocate for the Petitioner : DR. A SARAF
Advocate for the Respondent : ASSTT.S.G.I.
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BEFORE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
ORDER
Date : 21-10-2020 Heard Mr. P. Das, learned counsel appearing for the applicant/ writ petitioner and Mr. S.C. Keyal, learned Standing Counsel, GST appearing for the respondents.
The case of the applicant as the petitioner is that certain amounts were refunded in respect of Education Cess & Secondary and Higher Education Cess which were earlier paid by the petitioner. The refunds were made by the Department pursuant to the Judgment of the Supreme Court in the case of SRD Nutrients Private Limited Vs. Commissioner of Central Excise reported in (2018) 1 SCC
105. Subsequently, vide Judgment rendered in the case of Unicorn Industries Vs. Union of India reported in 2019 SCC Online Sc 1567 it was held that the Judgments rendered in the case of SRD Nutrients Private Limited Vs. Commissioner of Central Excise reported in (2018) 1 SCC 105 and Bajaj Auto Limited Vs. Union of India reported in (2019) 19 SCC 801, were per incuriam while the Judgments rendered in Union of India Vs. Modi Rubber Limited reported in (1986) 4 SCC 66 and Rita Textile (P) Limited Vs. Union of India reported in (1986) Supp SCC 557 are binding as being Judgments rendered by Coordinate Bench. Relevant paragraphs of the Judgments rendered in Unicorn Industries Vs. Union of India are extracted below:-
"49. The reason employed in SRD Nutrients Private Limited (supra) that there was nil excise duty, as such, additional duty cannot be charged, is also equally unacceptable as additional duty can always be determined and merely exemption granted in respect of a particular excise duty, cannot come in the way of determination of yet another duty based thereupon. The proposition urged that simply because one kind of duty is exempted, other kinds of duties automatically fall, cannot be accepted as there is no difficulty in making the computation of additional duties, which are payable under NCCD, education cess, secondary and higher education cess. Moreover, statutory notification must cover specifically the duty exempted. When a particular kind of duty is exempted, other types of duty or cess imposed by different legislation for a different purpose cannot be said to have been exempted.
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50. The decision of the larger Bench is binding on the smaller Bench has been held by this Court in several decisions such as Mahanagar Railway Vendors' Union v. Union of India [Mahanagar Railway Vendors' Union v. Union of India, 1994 Supp (1) SCC 609 : 1994 SCC (L&S) 735] , State of Maharashtra v. Mana Adim Jamat Mandal [State of Maharashtra v. Mana Adim Jamat Mandal, (2006) 4 SCC 98 : AIR 2006 SC 3446] and State of U.P. v. Ajay Kumar Sharma [State of U.P. v. Ajay Kumar Sharma, (2016) 15 SCC 289 : (2017) 3 SCC (Civ) 452 : (2016) 4 SCC (Cri) 623 : (2015) 3 SCC (L&S) 69] . The decision rendered in ignorance of a binding precedent and/or ignorance of a provision has been held to be per incuriam in Subhash Chandra v. Delhi Subordinate Services Selection Board [Subhash Chandra v. Delhi Subordinate Services Selection Board, (2009) 15 SCC 458 : (2010) 2 SCC (L&S) 147] , Dashrath Rupsingh Rathod v. State of Maharashtra [Dashrath Rupsingh Rathod v. State of Maharashtra, (2014) 9 SCC 129 : (2014) 4 SCC (Civ) 676 : (2014) 3 SCC (Cri) 673] and Central Board of Dawoodi Bohra Community v. State of Maharashtra [Central Board of Dawoodi Bohra Community v. State of Maharashtra, (2005) 2 SCC 673 : 2005 SCC (Cri) 546 : 2005 SCC (L&S) 246] . It was held that a smaller Bench could not disagree with the view taken by a larger Bench.
51. Thus, it is clear that before the Division Bench deciding SRD Nutrients (P) Ltd. [SRD Nutrients (P) Ltd. v. CCE, (2018) 1 SCC 105] and Bajaj Auto Ltd. [Bajaj Auto Ltd. v. Union of India, (2019) 19 SCC 801 : 2019 SCC OnLine SC 421] , the previous binding decisions of the three-Judge Bench in Modi Rubber Ltd. [Union of India v. Modi Rubber Ltd., (1986) 4 SCC 66 :
1986 SCC (Tax) 781] and Rita Textiles (P) Ltd. [Rita Textiles (P) Ltd. v. Union of India, 1986 Supp SCC 557 : 1987 SCC (Tax) 87] were not placed for consideration. Thus, the decisions in SRD Nutrients (P) Ltd. [SRD Nutrients (P) Ltd. v. CCE, (2018) 1 SCC 105] and Bajaj Auto Ltd. [Bajaj Auto Ltd. v. Union of India, (2019) 19 SCC 801 : 2019 SCC OnLine SC 421] are clearly per incuriam. The decisions in Modi Rubber Ltd. [Union of India v. Modi Rubber Ltd., (1986) 4 SCC 66 : 1986 SCC (Tax) 781] and Rita Textiles (P) Ltd. [Rita Textiles (P) Ltd. v. Union of India, 1986 Supp SCC 557 : 1987 SCC (Tax) 87] are binding on us being of coordinate Bench, and we respectfully follow them. We did not find any ground to take a different view." (Emphasis supplied) In view of the Judgment of the Apex Court in the case of Unicorn Industries (Supra) as referred above, the respondent authorities had issued the demand cum notice dated 21.09.2020 to the petitioner by which the refund granted to the petitioners earlier were held to be erroneous and consequently the recovery was sought to be made under Section 11(A)-1 of the Central Excise Act, 1954. The said demand notice is assailed as being illegal and unconstitutional in the connected writ Page No.# 5/5 petition.
The applicant as the petitioner in the writ petition contended that the refund which was granted cannot be held to be erroneous as the same was granted on the basis of the propositions laid down in the case of SRD Nutrients (Supra) which was a law in-force at the relevant point of time, when the refunds were granted. Consequently, a change in law cannot be declared to be erroneous requiring the petitioner to return back the amount which was refunded earlier.
By this application, interim orders are sought for in respect of the connected writ petition by submitting that this Court had earlier granted interim orders in respect of the similarly situated petitioners. Copy of the same has been referred to by Annexure-1, Page-9 to this application.
Under these circumstances, by virtue of this I.A. the submission for grant of interim protection has been prayed for as have been granted by this Court in respect of other similarly situated petitioners.
Upon hearing the learned counsel for the applicant/petitioner as well as for the respondents, it is directed that till the returnable date provided for in the connected WP(C) No. 4046/2020, the demand cum show cause notice dated 21.09.2020 shall remain suspended.
Accordingly, this Application stands allowed and disposed of.
JUDGE Comparing Assistant