Gauhati High Court
M/S Shree Sai Vamika Industries vs The Union Of India And 4 Ors on 10 December, 2021
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/16
GAHC010204742021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6483/2021
M/S SHREE SAI VAMIKA INDUSTRIES
A PARTNERSHIP FIRM REGD. UNDER THE PROVISION OF THE INDIAN
PARTNERSHIP ACT, 1932 AND HAVING ITS OFFICE AND FACTORY AT OLD
IIT ROAD, GOURIPUR, NORTH GUWAHATI, ASSAM.
VERSUS
THE UNION OF INDIA AND 4 ORS
THROUTH THE FINANCE SECRETARY, MINISTRY OF FINANCE, HAVING
HIS OFFICE AT NORTH BLOCK, NEW DELHI-110001.
2:THE COMMISSIONER
GUWAHATI
OFFICE OF THE CENTRAL GOODS AND SERVICE TAX
GUWAHATI
ASSAM.
3:THE ASSTT. COMMISSIONER
CENTRAL GST DIVISION
GST BHAWAN
KEDAR ROAD
GUWAHATI-781001
ASSAM.
4:PRINCIPAL COMMISSIONER
CENTRAL GOODS AND SERVICE TAX
OFFICE OF THE CENTRAL GOODS AND SERVICE TAX
GUWAHATI
ASSAM.
Page No.# 2/16
5:CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS
REP. BY ITS CHAIRMAN
DEPTT. OF REVENUE
MINISTRY OF FINANCE
NORTH BLOCK
CENTRAL SECRETARIAT
NEW DELHI-110001
Advocate for the Petitioner : MS. M L GOPE
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
10.12.2021 Heard Ms. N. Havelia, learned counsel for the petitioner. Also heard Mr. H. Gupta, learned CGC, appearing for the respondent no. 1 and Mr. S.C. Keyal, learned standing counsel for the respondent nos. 2 and 3.
2) By filing this writ petition, the petitioner has prayed for setting aside and quashing the impugned order no. 08/SR/PR.COMMR./2021-22 dated 30.08.2021, passed by the Principal Commissioner, GST, Dibrugarh (respondent no. 4), thereby rejecting the applications dated 02.03.2021 filed by the petitioner for fixing a special rate of value addition of Central Excise duty and for directing the respondents to treat the applications filed by the petitioner in time and to consider the same on merit.
3) The case of the petitioner is that their partnership firm is a Page No.# 3/16 manufacturing concern and pursuant to Industrial Policy Resolution, 1997, and North East Industrial and Investment Promotion Policy, 2007 the petitioner had set up an industrial manufacturing unit in Gouripur, North Guwahati. It is projected that the petitioner was availing excise duty exemption in terms of notification dated 25.04.2007. However, the said notification was amended vide notification dated 27.03.2008, whereby the value addition undertaken in the manufacture of goods under Area Based Exemption had been introduced and it is projected that in connection with goods manufactured by it, the petitioner became entitled to refund of central excise duty paid on value addition, which was 36% as per table under notification dated 27.03.2008 instead of 100% was hitherto available under notification dated 25.04.2007. Thereafter, notification no. 31/2008, 32/2008 and 38/2008 were issued to amend notification dated 25.04.2007. Aggrieved by the said notifications dated 27.03.2008 and 10.06.2008, the petitioner had filed a writ petition before this Court, being W.P. (C) 317/2014. However, in the meantime, this Court by judgment and order dated 24.06.2009 passed in W.P.(C) No. 2718/2008, had set aside the said two notifications, holding that the writ petitioner therein was entitled to 100% exemption from payment of excise duty as per notification dated 08.07.1999 and 25.04.2007. The respondents filed a writ appeal, being W.A. No. 243/2009 to challenge the said judgment, but the appeal was dismissed by common order dated 20.11.2014. The petitioner herein had also filed a similar writ petition, which was registered as W.P.(C) No. 6972/2015, which was allowed by order dated 02.12.2015 in line of herein before judgment dated 20.11.2014 passed in W.A. 243/2009. The Revenue then filed a SLP before the Supreme Court of India against the judgment passed in W.A. 243/2009 and the said Hon'ble Court by order dated 07.12.2015 in IA No. 3/2015 in SLP(C) No.11878/2015, stayed Page No.# 4/16 the operation of the impugned judgment dated 20.11.2014 in WA No. 243/2009, inter alia, directing the authorities to release 50% of amount due to the respondent therein in terms of the judgment subject to furnishing solvent surety to the satisfaction of the jurisdictional Commissioner and on such condition, the contempt proceeding against the concerned Excise officials was also stayed. It is projected that thereafter the respondent authorities had released to the petitioner refund of Rs.4,63,28,360/-.
4) The Civil Appeal No. 2256-2263/2020, filed by the revenue, which included the case of the petitioner, was allowed by the Supreme Court of India by order dated 22.04.2020. Thereafter, the respondent no. 3 had served to the petitioner notice dated 01.01.2021 for recovery of the excess amount of refund so paid to the petitioner as per Section 11A of the Central Excise Act, 1944. It is projected that the petitioner was unaware of the dismissal of their Civil Appeal by the Supreme Court of India because of lock-down in Tinsukia Town and became aware of the same only on receipt of notice. The petitioner had thereafter filed six applications dated 02.03.2021 for the financial years from 2012-13 to 2017-18 for fixation of special rate of excise duty. By another letter dated 02.03.2021, the petitioner informed the respondent no. 3 regarding filing of applications for fixation of special rates and requested the authorities to keep in abeyance their demand till disposal of the same. Thereafter, apprehending coercive steps by the respondent authorities, the petitioner had approached this Court by filing W.P.(C) 1971/2021, amongst others, to keep in abeyance the coercive steps by the respondent authorities till disposal of their application. This Court by order dated 30.03.2021, while keeping the issue of maintainability open, directed the jurisdictional Commission of CGST, Guwahati Page No.# 5/16 to dispose of the same within four weeks. Accordingly, the respondent no. 4 by order dated 30.08.2021, held that the six applications filed by the petitioner were barred by limitation and thus, rejected the same.
5) The learned counsel for the petitioner has submitted that this Court by judgment and order dated 12.08.2021 in W.P.(C) 3569/2021 - M/s. Jyothy Labs Ltd. v. The Union of India & 2 others , had allowed the writ petition by issuing a direction upon the jurisdictional Commissioner to consider the application for fixing special rates. It is submitted that the Court had accepted the contention of the petitioner therein that as interim order by the Supreme Court of India was in favour of the petitioner till 22.04.2020 and therefore, they had no occasion to file application for special rate of value addition as such it was impossible to file application for fixation of special rate with the timeline.
6) The learned counsel for the petitioner has submitted that the time limit to file such application was not later than 30 th of September of the given financial year, but during the said period, due to Covid-19 pandemic, the petitioner could not take appropriate steps. Nonetheless, by virtue of orders passed by the Supreme Court of India in Suo Motu W.P.(C) No.3/2020 and MA. No. 665/2021 arising out of the said case, the period of limitation, whether condonable or not stood extended from 15.03.2020 till 02.10.2021. Accordingly, it is submitted that the application dated 20.10.2021 is required to be considered and disposed of before realizing refund. In support of his submissions, the learned counsel for the petitioner has placed reliance on (i) judgment and order dated 12.08.2021 passed by this Court in W.P.(C) 3569/2021 (M/s. Jyothy Labs Ltd. v. The Union of India & 2 others ), and (ii) Page No.# 6/16 orders passed from time to time by Supreme Court of India in Re: Cognizance for Extension of Limitation, SMW(C) No. 3/2020, and (iii) orders passed from time to time by Supreme Court of India in Re: Cognizance for Extension of Limitation, M.A. No. 665/2021 in SMW(C) No. 3/2020.
7) Per contra, the learned standing counsel for the respondent nos. 2 and 3 has submitted that the demand for refund was occasioned because the interim order which was passed by the Supreme Court of India was conditional and that the Central Excise Department had made conditional refund of 50% of excise duty paid because of the terms imposed by the Supreme Court of India in challenge made against the appellate judgment of this Court in W.A. No. 243/2009, whereby the petitioner had submitted solvent surety. Accordingly, it is submitted that the petitioner was required to refund the excise duty assessed with interest and penalty. It is also submitted that the time-lines given in the Excise notification cannot be interpreted so as to give it a meaning that the time was extended by virtue of orders passed by the Supreme Court of India. It is also submitted that in the cited case of Jyothy Labs Ltd. (supra), was not applicable on facts because in the said case the judgment of the Supreme Court of India was passed on 22.04.2020 and the application had been made on 18.05.2020, i.e. within one month and in the said context, it is submitted that the petitioner herein had submitted its application only on 02.03.2021. It is also submitted that the applications for fixing special rates was dismissed, which is an appealable order. Accordingly, it is submitted that the petitioner is required to avail alternative remedy prescribed by law. In support of his submissions, the learned standing counsel for the respondent nos. 2 and 3 has placed reliance on the following cases, (i) Commissioner of Customs (Import), Mumbai v. Dilip Page No.# 7/16 Kumar and Company & Ors., (2018) 9 SCC 1, and (ii) Magadh Sugar & Energy Limited v. State of Bihar & Ors., (2021) 0 Supreme(SC) 517: 2021 STPC 10268 SC.
8) It is seen that this Court in the case of Magadh Sugar and Energy Limited (supra), the Supreme Court of India, while dealing with issue of alternative remedy had observed as follows -
19. While a High Court would normally not exercise its writ jurisdiction under Article 226 of the Constitution if an effective and efficacious alternate remedy is available, the existence of an alternate remedy does not by itself bar the High Court from exercising its jurisdiction in certain contingencies. This principle has been crystallized by this Court in Whirlpool Corporation v. Registrar of Trademarks, Mumbai, (1998) 8 SCC 1 and Harbanslal Sahni v. Indian Oil Corporation Ltd, (2003) 2 SCC 107. Recently, in Radha Krishan Industries v. State of Himachal Pradesh & Ors, 2021 SCC OnLine SC 334 a two judge Bench of this Court of which one of us was a part of (Justice DY Chandrachud) has summarized the principles governing the exercise of writ jurisdiction by the High Court in the presence of an alternate remedy. This Court has observed:
"28. The principles of law which emerge are that:
(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;
(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;
(iii) Exceptions to the rule of alternate remedy arise where
(a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution;
(b) there has been a violation of the principles of natural justice;
(c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged;
(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;
(v) When a right is created by a statute, which itself prescribes the remedy Page No.# 8/16 or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and
(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with." (emphasis supplied) The principle of alternate remedies and its exceptions was also reiterated recently in the decision in Assistant Commissioner of State Tax v. M/s Commercial Steel Limited[Civil Appeal No. 5121 of 2021]. In State of HP v. Gujarat Ambuja Cement Ltd, (2005) 6 SCC 499 this Court has held that a writ petition is maintainable before the High Court if the taxing authorities have acted beyond the scope of their jurisdiction. This Court observed:
"23. Where under a statute there is an allegation of infringement of fundamental rights or when on the undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess can be the grounds on which the writ petitions can be entertained. But normally, the High Court should not entertain writ petitions unless it is shown that there is something more in a case, something going to the root of the jurisdiction of the officer, something which would show that it would be a case of palpable injustice to the writ petitioner to force him to adopt the remedies provided by the statute. It was noted by this Court in L. Hirday Narain v. ITO [(1970) 2 SCC 355: AIR 1971 SC 33] that if the High Court had entertained a petition despite availability of alternative remedy and heard the parties on merits it would be ordinarily unjustifiable for the High Court to dismiss the same on the ground of non-exhaustion of statutory remedies; unless the High Court finds that factual disputes are involved and it would not be desirable to deal with them in a writ petition."
20. The above principle was reiterated by a three-judge Bench of this Court in Executive Engineer v. Seetaram Rice Mill, (2012) 2 SCC 108. In that case, a show cause notice/provisional assessment order was issued to the assessee on the ground of an unauthorized use of electricity under Section 126 (1) of the Electricity Act 2003 and a demand for payment of electricity charges was raised. The assessee contended that Section 126 was not applicable to it and challenged the jurisdiction of the taxing authorities to issue such a notice, before the High Court in its writ jurisdiction. The High Court entertained the writ petition. When the judgment of the High Court was appealed before this Court, it held that the High Court did not commit any error in exercising its jurisdiction in respect of the challenge raised on the jurisdiction of the revenue authorities. This Court made the following observations:
Page No.# 9/16 "81. Should the courts determine on merits of the case or should they preferably answer the preliminary issue or jurisdictional issue arising in the facts of the case and remit the matter for consideration on merits by the competent authority? Again, it is somewhat difficult to state with absolute clarity any principle governing such exercise of jurisdiction. It always will depend upon the facts of a given case. We are of the considered view that interest of administration of justice shall be better sub-served if the cases of the present kind are heard by the courts only where they involve primary questions of jurisdiction or the matters which go to the very root of jurisdiction and where the authorities have acted beyond the provisions of the Act.
82. It is argued and to some extent correctly that the High Court should not decline to exercise its jurisdiction merely for the reason that there is a statutory alternative remedy available even when the case falls in the above stated class of cases. It is a settled principle that the courts/tribunal will not exercise jurisdiction in futility. The law will not itself attempt to do an act which would be vain, lex nil frustra facit, nor to enforce one which would be frivolous- lex neminem cogit ad vana seu inutilia- the law will not force anyone to do a thing vain and fruitless. In other words, if exercise of jurisdiction by the tribunal ex facie appears to be an exercise of jurisdiction in futility for any of the stated reasons, then it will be permissible for the High Court to interfere in exercise of its jurisdiction. This issue is no longer res integra and has been settled by a catena of judgments of this Court, which we find entirely unnecessary to refer to in detail..." (emphasis supplied)
21. In Union of India v State of Haryana, (2000) 10 SCC 482 the assessing authorities imposed sales tax on the rentals charged for supply of telephones. Writ petitions were filed in the High Court challenging the levy. The writ petitions were dismissed on the ground that an alternative remedy of a statutory appeal was available. An appeal against these orders was filed before this Court. The appeal was allowed and the matter was remanded back to the High Court for determination since it involved a question of law on whether the supply of telephones amounted to sale.
22. It is not the case of the appellant that the respondents have miscalculated the duty and penalty imposed on it. The appellant contends that the State Government does not have the power to levy tax on its sale of electricity to BSEB. Thus, the plea strikes at the exercise of jurisdiction by the Government. In view of the law discussed above on the rule of alternate remedy, the High Court can exercise its writ jurisdiction if the order of the authority is challenged for want of authority and jurisdiction, which is a pure question of law.
23. The appellant is admittedly a sugar mill producing electricity from bagasse (a by-product of sugar production). The electricity that is produced is Page No.# 10/16 used for running the mill and the excess is sold to BSEB. There is no dispute about the nature of the transaction between the appellant and BSEB. The petition before the High Court was initially tagged with the petition filed by NTPC since it involved similar issues. However, it was subsequently de-tagged and heard separately on the ground that the appellant in this case is a sugar mill that also produces electricity, while NTPC is a power generation company. The writ petition filed by the appellant was dismissed by the impugned judgment. Both the petitions - filed by the appellant and NTPC before the High Court challenged the power of the State Government to levy tax on sale of electricity to Electricity Boards. A three judge Bench of this court in Sree Meenakshi Mills Ltd. v Commissioner of Income Tax, AIR 1957 SC 49 succinctly explained the tests for the identification of questions of fact, questions of law and mixed questions of law and facts. Justice T. L. Venkatarama Aiyar writing for the Bench observed that:
"9. [..] To take an illustration, let us suppose that in a suit on a promissory note the defence taken is one of denial of execution. The court finds that the disputed signature is unlike the admitted signatures of the defendant. It also finds that the attesting witnesses who speak to execution were not, in fact, present at the time of the alleged execution. On a consideration of these facts, the court comes to the conclusion that the promissory note is not genuine, Here, there are certain facts which are ascertained, and on these facts, a certain conclusion is reached which is also one of fact.
10. In between the domains occupied respectively by questions of fact and of law, there is a large area in which both these questions run into each other, forming so to say, enclaves within each other. The questions that arise for determination in that area are known as mixed questions of law and fact. These questions involve first the ascertainment of facts on the evidence adduced and then a determination of the rights of the parties on an application of the appropriate principles of law to the facts ascertained. To take an example, the question is whether the defendant has acquired title to the suit property by adverse possession. It is found on the facts that the land is a vacant site that the defendant is the owner of the adjacent, residential house and that he has been drying grains and cloth and throwing rubbish on the plot. The further question that has to be determined is whether the above facts are sufficient to constitute adverse possession in law. Is the user continuous or fugitive? Is it as of right or permissive in character? Thus, for deciding whether the defendant has acquired title by adverse possession the court has firstly to find on an appreciation of the evidence what the facts are. So far, it is a question of fact. It has then to apply the principles of law regarding acquisition of title by adverse possession, and decide whether on the facts established by the evidence, the requirements of law are satisfied. That is a question of law."
The test that is to be applied for the determination of a question of law is whether the rights of the parties before the court can be determined without reference to the factual scenario. In this case, the High Court was entrusted with Page No.# 11/16 the determination of the meaning of the phrases used in Section 3 of the Act to determine if the supply of electricity by the appellant would fall within its ambit. Unlike a dispute on the execution of a promissory note or a plea of adverse possession, there is no adjudication on facts required here. There is also no dispute on the nature of the transaction involved.
24. The issues raised by the appellant are questions of law which require, upon a comprehensive reading of the Bihar Electricity Act, a determination of whether tax can be levied on the supply of electricity by a power generator (which also manufactures sugar) supplying electricity to a distributor; and whether the first respondent has the legislative competence to levy duty on the sale of electricity to an intermediary distributor in view of the decision of this Court in State of AP (supra). The question of whether the appellant is liable to file returns under Sections 6B(1) and 5A of the Act is directly related to the issue of whether the sale of electricity by the appellant to BSEB falls under the charging provisions of Section 3(1). The questions raised by the appellant can be adjudicated without delving into any factual dispute. Thus, the present matter is amenable to the writ jurisdiction of the High Court.
25. We are of the considered view that the High Court made an error in declining to entertain the writ petition and it would be appropriate to restore the proceedings back to the High Court for a fresh disposal. In order to facilitate the decision on remand, we have recorded the broad submissions of the parties on merits but leave the matter open for a fresh evaluation by the High Court. We accordingly allow the appeal and set aside the judgment of the High Court dated 18 September 2017 arising out of CWJC No 4300 of 2015. The writ petition is restored to the file of the High Court for fresh determination. The appeal is disposed of in the above terms with no order as to costs .
9) In the case of M/s. Jyothy Labs Ltd. (supra), this Court had final verdict in favour of the assessee. The operative part of the said judgment is quoted below:-
"17. Without going into the aspect whether the requirement to submit such application within 30th September of the given financial year is a mandatory requirement or a directory requirement, what we take note of is that such a provision has been incorporated to streamline the process for submission of the application seeking for the fixation of a special rate to the value addition to manufactured goods.
18. We have to take note of that as long as there was a judgment of the Division Bench in WA No.243/2009 in favour of the petitioner interfering with the modification for exemption of Page No.# 12/16 excise duty and the matter thereafter was pending before the Supreme Court on an appeal with an interim order dated 07.12.2015 requiring a refund of the 50% of the amount of excise duty, the occasion had not arisen for the assesse to go further and seek for a fixation of a special rate in respect of the value addition to the manufactured goods and even if there would have been a determination of such special rate, the same would have remained ineffective and un-implementable till the Supreme Court had finally decided the issue which was done as per the judgment dated 20.04.2020 in Civil Appeal No.2256-2263 of 2020, and further the relevance of such determination would again depend on the outcome of the appeal that was pending before the Supreme Court. We have taken note of that immediately after the judgment dated 20.04.2020 in Civil Appeal No.2256- 2263 of 2020, when the occasion had again arisen for the petitioner assessee to seek for fixation of a special rate in respect of the value addition to the manufactured goods for the purpose of payment of the excise duty, the application for such request was made within a period of one month, which is on 18.05.2020. From such point of view, it cannot be wholly said that the petitioner would now be prevented from claiming their legal right for fixation of a special rate to the value addition to the manufactured goods merely because such application was not made within 30th September of that given financial year to which the claim for fixation of the said rate pertains to.
19. In the peculiar facts and circumstances of the present case, where the necessity for making of a request for fixation of the special rate for the value addition to the manufactured goods may not have occasioned earlier, we deem it appropriate that the Principal Commissioner of GST, Guwahati decides the application of the petitioner dated 18.05.2020 on its own merit as regards the claim for fixation of a special rate to the value addition to the manufactured goods of the given financial year. We also take note of that in the earlier order dated 24.03.2021 in WP(C) No.1644/2021, it was an agreed stand of the respondent GST Department that the application of the petitioner requesting for fixation of a special rate on the value addition to the manufactured goods would be considered and the possibility that the application would be rejected on the ground of it having not been submitted prior to 30th September of that given financial year was not raised when the said order was passed by the Court.
20. If any such apprehension would have been expressed, the matter possibly would have been decided in the earlier writ petition itself. From such point of view also, on the principle of constructive res-judicata, the ground for rejecting such application for the reason that it was not submitted within 30th September of the given financial year would perhaps be not available for the respondent authorities for rejecting the application.
21. In the circumstance, we direct the Principal Commissioner, GST, Guwahati to consider the Page No.# 13/16 application of the petitioner dated 18.05.2020 seeking for fixation of a special rate to the value addition to the manufactured goods of the given financial year and decide the same as per law."
10) For the purpose of considering the prayer for interim relief, the Court finds that in the herein before quoted paragraphs of the case of M/s. Jyothy Labs Ltd. (supra), this Court had categorically held that the requirement of requesting for fixation of a special rate in respect of value addition to the manufactured goods had arisen only after the final judgment of the Supreme Court of India on 22.04.2020. It is seen that by virtue of orders passed by the Supreme Court of India in Suo Motu W.P.(C) No.3/2020 and MA. No. 665/2021 arising out of the said case, the period of limitation, whether condonable or not stood extended from 15.03.2020 till 02.10.2021 and it was further provided in para-II of the order dated 23.09.2021 in M.A. No. 665/2021 as follows - " II. In cases where the limitation would have expired during the period between 15.03.2020 till 02.10.2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 03.10.2021. In the event actual balance period of limitation remaining, with effect from 03.10.2021, is greater than 90 days, that longer period shall apply."
11) Thus, as mentioned in the foregoing paragraph, the opinion of this Court in the herein before referred case of M/s. Jyothy Labs Ltd. (supra), was to the effect that the requirement of requesting for fixation of a special rate in respect of value addition to the manufactured goods had arisen only after the final judgment of the Supreme Court of India on 22.04.2020. In this regard, although the Court is conscious of the fact that usually question of limitation is a Page No.# 14/16 mixed question of facts and law, but in this case in hand, the issue of limitation would not require any fact to be considered save and except the fact that petitioner had filed six applications dated 02.03.2021 claiming fixation of special rates for the financial years from 2012-13 to 2017-18 after expiry of 30 th September of each corresponding financial year. Thus, the only question which is required to be determining is to the effect that whether any cause of action had arisen before 22.04.2020 for the petitioner to apply for fixation of special rates of excise duty on goods manufactured by them. Another corollary question that would possibly arise is whether the period of time had stopped running during the Covid-19 Pandemic. In the considered opinion of this Court, the issue raised by the petitioner can easily be determined without examining any factual dispute. In this regard, the Court finds support from the judgment of Magadh Sugar and Energy Limited (supra).
12) Therefore, it appears that the petitioner has been able to show a prima facie case for hearing by projecting that (i) the requirement of requesting for fixation of a special rate in respect of value addition to the manufactured goods had arisen only after the final judgment of the Supreme Court of India on 20.04.2020, and (ii) the plea that there was an extension of the period of limitation (a) from 15.03.2020 to 02.10.2021, and (b) for a period of 90 days from 03.10.2021 did not vitiate the application dated 20.10.2021. Therefore, the balance of convenience tilts in favour of interim protection to the petitioner.
13) In view of the discussions above and in light of the judgment dated 12.08.2021 by the learned coordinate Bench of this Court in the case of M/s. Jyothy Labs Ltd. (supra), and the ratio laid down in the case of Magadh Page No.# 15/16 Sugar and Energy Limited (supra), the Court is of the considered opinion that the writ petition filed by the petitioner is maintainable and that the petitioner is not required to be relegated to the appellate authority despite availability of alternative remedy.
14) Accordingly, till the next date of listing, as an interim measure the operation of the impugned appellate order No. 08/SR/PR.COMMR./2021-22 dated 30.08.2021 passed by the respondent no.4 and the notices dated 01.01.2021 and 22.01.2021 issued by the respondent no. 3 are stayed. However, this interim protection hereby granted is subject to condition that if the tenure of the surety bond and solvency bond submitted by the petitioner in terms of interim order of the Supreme Court has lapsed, the petitioner shall extend the validity/tenure/ term of the said surety bond and solvency bond till further orders of this Court and provide a copy thereof to the respondent no. 4. Such exercise is not required if the tenure of the said solvency bond is otherwise valid in all respect.
15) None of the observations made herein is intended to be construed as final opinion of the Court as such none of the parties shall be prejudiced by this order when the matter is finally heard on merit.
16) Issue notice returnable on 10.01.2022. Extra copies of the writ petition be served on the learned CGC as well as on the learned Standing counsel for the respondent nos.2 and 3.
17) List on 10.01.2022.
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JUDGE
Comparing Assistant