Gujarat High Court
M/S Chiripal Industries Ltd vs Union Of India on 30 October, 2018
Author: Anant S. Dave
Bench: Anant S. Dave, A.C. Rao
C/SCA/16900/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16900 of 2018
M/S CHIRIPAL INDUSTRIES LTD
Versus
UNION OF INDIA
Appearance:
MR AMAL PARESH DAVE(8961) for the PETITIONER(s) No. 1,2
MR PARESH M DAVE(260) for the PETITIONER(s) No. 1,2
for the RESPONDENT(s) No. 1,2,3
CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE A.C. RAO
Date : 30/10/2018
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE) Heard Mr. Paresh Dave, learned counsel for the petitioners.
In this petition, the petitioners have prayed to issue a writ of mandamus or any other appropriate writ, order or direction holding and declaring that POY produced and captively consumed within the factory of production by the petitioner was not chargeable to National Calamity Contingency Duty and to restore OIA No. 98/2009(AhdI)CE/ID/Commr(A)/Ahd dated 27.05.2009 [AnnexureH].
At the outset, learned counsel for the Page 1 of 3 Downloaded on : Fri Aug 09 22:31:46 IST 2019 C/SCA/16900/2018 ORDER petitioners fairly brought to our notice a decision of the Uttarakhand High Court in the case of Bajaj Auto Ltd. v. Union of India [2015(317) ELT 12] wherein denial of Area Based exemption from National Calamity Contingent Duty and recovery thereof is held permissible by upholding demand made in various impugned orders. Learned counsel for the petitioner invited our attention to Article 271 of the Constitution of India and decision of the Apex Court in the case of SRD Industries Pvt. Ltd. v. Commissioner of Central Excise, Guwahati [2017(355) ELT 481 (SC)] in which Education Cess [EC] and Higher Education Cess [HEC] paid by assesses availing area based exemption allowed by refund of duty paid. Further, in view of divergent views expressed by CESTAT and High Courts on such entitlement of assessee for refund of EC and HEC, it was held by the Apex Court that where whole of exercise duty or Service Tax was exempted, EC and HEC was not payable. As contended EC and HEC are surcharges. In the facts of the case on hand, it is submitted that levying of the basic excise duty is exempted qua the goods in question and surcharge is levied.
Prima facie, question about National Calamity Contingent Duty is to be exempted on the ground Page 2 of 3 Downloaded on : Fri Aug 09 22:31:46 IST 2019 C/SCA/16900/2018 ORDER of exemption of excise duty on POY or to be treated as surcharge, etc., we deem it just and proper to issue notice returnable on 06.12.2018.
In the meanwhile, order No.A/11368/2018 dated 05.07.2018 passed by CESTAT [AnnexureJ] shall remain stayed.
Direct Service is permitted. In addition to the above copy be served to learned Assistant Solicitor General of India appearing for Union of India.
(ANANT S. DAVE, J) (A. C. RAO, J) P. SUBRAHMANYAM Page 3 of 3 Downloaded on : Fri Aug 09 22:31:46 IST 2019