Gauhati High Court
Kamlang Saw And Veneer Mills Pvt. Ltd vs Union Of India And 3 Ors on 17 August, 2020
Author: Achintya Malla Bujor Barua
Bench: Achintya Malla Bujor Barua
Page No.# 1/4
GAHC010104792020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 3113/2020
1:KAMLANG SAW AND VENEER MILLS PVT. LTD.
A PRIVATE LTD. COMPANY HAVING THEIR REGISTERED OFFICE AT
PALASHBARI, MOUZA-CHAYANI, KAMRUP-781128, ASSAM, REP. BY THEIR
DULY AUTHORIZED DIRECTOR- SRI ABHISHEK KHETAN, AGED ABOUT 38
YEARS, S/O DEBI PRASAD KHETAN, R/O SRCB ROAD, FANCY BAZAR,
GUWAHATI-781001, KAMRUP (M), ASSAM
VERSUS
1:UNION OF INDIA AND 3 ORS.
REP. BY THE SECRETARY TO THE GOVT. OF INDIA MINISTRY OF FINANCE
DEPTT. OF REVENUE, NORTH BLOCK, NEW DELHI
2:THE SECRETARY
TO THE GOVT. OF INDIA
MINISTRY OF COMMERCE AND INDUSTRY UDYOG BHAWAN
NEW DELHI
3:THE COMMISSIONER GST AND CENTRAL EXCISE
GST BHAWAN
KEDAR ROAD
GUWAHATI-781001
ASSAM
4:THE ASSISTTANT COMMISSIONER GST AND CENTRAL EXCISE
GUWAHATI-1 DIVISION
GST BHAWAN
2ND FLOOR
KEDAR ROAD
GUWAHATI-781001
ASSA
Advocate for the Petitioner : MR. D SARAF
Page No.# 2/4
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
ORDER
Date : 17-08-2020 Heard Mr. D. Saraf, learned counsel for the petitioners. Also heard Mr. S.C. Keyal, learnedASGI for the GST Department.
2. Issue notice returnable 4(four) weeks.
3. Extra copies to the respondents within 7 (seven) days.
4. The petitioners in course of their economic activities under the Northeast Industrial Policy, 2007 were entitled to certain exemption in the payment of excise duty. Along with excise duty, as per the relevant law in force at that period to time they were also required to pay certain education cess & secondary and higher education cess.
5. The education cess & secondary and higher education cess were required to have been calculated on the basis of the excise duty payable.
6. In the circumstance, a question had arisen as to whether in view of the exemption granted to the excise duty the petitioner would also be entitled to an exemption to the payment of education cess & secondary and higher education cess. The said question was decided by the Supreme Court in its pronouncement in SRD Nutrients Pvt. Ltd. Vs. Commissioner of Central Excise, Guwahati reported in (2018) 1 SCC 105 wherein in paragraph 27 it was held that the appellants therein were entitled to refund of education cess and higher education cess which was paid along with the excise duty once the excise duty itself was exempted from levy.
7. In the resultant circumstance, by the order dated 30.05.2019 of the Assistant Commissioner, Excise, GST and Central Excise, certain amounts were sanctioned for being refunded to the petitioner and accordingly the refunds were given effect.
Subsequent thereto, the Supreme Court in its pronouncement in Unicorn Industries vs. Union of India and others reports in 2019 SCC Online SC 1567 in paragraph 49 had held as Page No.# 3/4 under:
"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.
51. Thus, it is clear that before the Division Bench deciding SRD Nutrients Private Limited and Bajaj Auto Limited (supra), the previous binding decisions of three-Judge Bench in Modi Rubber (supra) and Rita Textiles Private Limited (supra) were not placed for consideration. Thus, the decisions in SRD Nutrients Private Limited and (supra) and Rita Textile Private Limited(supra) are binding on us being of Coordinate Bench, and we respectfully follow them. We did not find any ground to take a different view."
8. In view of the subsequent judgment of the Supreme Court in Unicorn Industries (supra) the respondent authorities had issued the demand cum show cause notice dated 02.06.2020 to the petitioner by which a question was raised that the earlier refund of the education cess & secondary and higher education cess given to them has now become erroneous refunds and therefore, a recovery be made under section 11(A-1) of the Central Excise Act 1944. The demand cum show-cause notice dated 02.06.2020 is assailed in this writ petition on the ground that the condition precedent to invoke the power under section 11(A-
1) is that the refund made must be erroneous. It is contended when the refund was given effect during the period prior to the judgment of the Supreme Court in Unicorn Industries (supra), and at that point of time the proposition laid down in SRD Nutrients Private Limited (supra) was in force which had decided in favour of such refunds. Accordingly, it is contended that when the refund was made the law in force was that such refunds were justified under law and therefore, the refunds made were not erroneous.
9. It being so, condition precedent of section 11(A-1) of the Excise Central Act, 1944 is not satisfied.
10. In the above circumstance, a question for determination would be as to whether the proposition of law laid down in Unicorn Industries (supra) would render the refunds made to Page No.# 4/4 the petitioners to be erroneous.
11. In view of the above, until further orders we stay the operation of the demand cum show-cause notice dated 02.06.2020.
12. List on 06.10.2020.
JUDGE Comparing Assistant