Custom, Excise & Service Tax Tribunal
Godrej Consumer Products Ltd vs Guwahati on 22 November, 2023
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH : KOLKATA
REGIONAL BENCH - COURT NO.2
Excise Appeal No.75476 of 2014
(Arising out of Order-in-Original No.13/SR/COMMR/GHY/2013-14 dated 16.01.2014
passed by Commissioner of Central Excise & Service Tax, Guwahati.)
M/s. Godrej Consumer Products Limited
(Erstwhile Godrej Household Products Limited)
(A12, B2, Mini Industrial Estate, Kalapahar, Guwahati-781016.)
...Appellant
VERSUS
Commissioner of Central Excise & Service Tax, Guwahati
.....Respondent
(Sethi Trust Building, 5th Floor, GS Road, Bhangagarh, Guwahati-781005.) WITH
(i) Excise Appeal No.75477 of 2014 (M/s. Godrej Consumer Products Limited vs. Commissioner of Central Excise & Service Tax, Guwahati); (ii) Excise Appeal No.75478 of 2014 (M/s. Godrej Consumer Products Limited vs. Commissioner of Central Excise & Service Tax, Guwahati); (iii) Excise Appeal No.75479 of 2014 (M/s. Godrej Consumer Products Limited vs. Commissioner of Central Excise & Service Tax, Guwahati);
(i) (Arising out of Order-in-Original No.16/SR/COMMR/GHY/2013-14 dated 16.01.2014 passed by Commissioner of Central Excise & Service Tax, Guwahati.)
(ii) (Arising out of Order-in-Original No.14/SR/COMMR/GHY/2013-14 dated 16.01.2014 passed by Commissioner of Central Excise & Service Tax, Guwahati.)
(iii) (Arising out of Order-in-Original No.15/SR/COMMR/GHY/2013-14 dated 16.01.2014 passed by Commissioner of Central Excise & Service Tax, Guwahati.) APPEARANCE Shri B.L. Narasimhan & Ms. Udita Saraf, both Advocates for the Appellant (s) Shri J.Chattopadhyay, Authorized Representative for the Respondent (s) 2 Excise Appeal Nos.75476-75479 of 2014 CORAM: HON'BLE SHRI R. MURALIDHAR, MEMBER(JUDICIAL) HON'BLE SHRI K. ANPAZHAKAN, MEMBER(TECHNICAL) FINAL ORDER NO___77524-77527/2023 DATE OF HEARING : 22 November 2023 DATE OF DECISION : 22 November 2023 Per : K. ANPAZHAKAN :
Four appeals have been filed by the Appellant M/s. Godrej Consumer Products Ltd. against the following four Orders-in-Original passed in respect of their four units mentioned below:
1. E/75476/2014- 13/SR/COMMR/GHY/ 2013-2014 dated 16.01.2014, unit at Mini Industrial Estate, Kalapahar.
2. E/75477/2014-16/SR/COMMR/GHY/ 2013-2014 dated 16.01.2014 unit at Lokhra .
3. E/75478/2014 -14/SR/COMMR/GHY/ 2013-2014 dated 16.01.2014 unit ADPC Kalapahar.
4. E/75479/2014-15/SR/COMMR/GHY/ 2013-2014 dated 16.01.2014 unit at Bamunimaidan Industrial State .
As the issue involved in all the four appeals are the same, they are taken up together for decision.
2. The Appellant is engaged in manufacture and supply of mosquito repellents falling under Chapter 38 of the First Schedule to the Central Excise Tariff Act, 1985. The Appellant availed the benefit of Notification No. 32/1999-CE dated 08.07.1999 which granted 100% exemption on products manufactured and cleared from a unit located in North- Eastern region. Accordingly, Appellant was claiming refund of 100% excise duty paid in cash in respect of final products. The exemption Notification No. 32/1999-CE was amended vide subsequent 3 Excise Appeal Nos.75476-75479 of 2014 notifications, viz. Notification No. 17/2008-CE dated 27.03.2008 (Notification 20/2007-CE dated 25.04.2007 and Notification No.20/2008-CE dated 28.03.2008 (effective from 01.04.2008), wherein the quantum of refund was restricted to the limit of value additions. The rate of central excise duty refund in respect of goods manufactured by the Appellant was reduced to 34% of total duty paid. The amended Notifications were however struck down by the Ld. Single Judge of the Hon'ble Gauhati High Court vide its order dated 24.06.2009. Thereafter, the department went for an appeal before the divisional bench of the Hon'ble Gauhati High Court in W.A. No. 243/2009 whereby the Hon'ble High Court stayed the Single Bench order of the same court vide interim order dated 11.08.2009. This interim order was further amended by the Hon'ble Bench vide its order dated 14.08.2012 to allow 50% of the amount due to the assessees, to bring the order in line with the interim order of the Hon'ble Supreme Court dated 13.01.2012. Thereafter, the Hon'ble Division Bench of the Gauhati High Court vide its order dated 20.11.2014 upheld the order of the Single Bench. Aggrieved by the said order, the department went for an appeal before the Hon'ble Supreme Court. On 22.04.2020, the Hon'ble Supreme Court in the case of Union of India v. VVF Ltd. & Another, 2020- VIL-14-SC-CE, upheld the validity of the amended notifications issued to curtail the benefit of refund given under the area-based exemption notifications in North - Eastern states. Thus, the aforesaid decision has the effect of reinstating/ restoring the Notification No. 17/2008-CE and 20/2008-CE, which was originally quashed by the Hon'ble High Court of Gauhati.
3. The Appellant was under the impression that during the pendency of the issue before the Hon'ble Supreme Court, they did not have to apply for fixation of special rate of value addition since the amending notifications had already been struck down by the Hon'ble High Court. However, as a measure of abundant caution, they submitted applications for such rate fixation for the FY 2009-10 on 29.09.2010 (for each of the units), since the actual value addition of the goods 4 Excise Appeal Nos.75476-75479 of 2014 manufactured by the Appellant was much higher than the percentage specified in the table of the notification i.e. 34%. However, the Ld. Commissioner of Central Excise, Guwahati vide the impugned orders rejected the aforesaid applications on the grounds that subject applications are barred by limitation inasmuch as Para 2.1(1) of the Notification No. 32/1999-CE (supra) and Para 3(1) of the Notification No. 20/2007-CE (supra) provides that such application must not be made later than the 30th day of September for the same financial year. Being aggrieved with impugned order, the Appellant has filed present appeals.
4. The Appellant submits that the issue is no longer res integra as this Tribunal in the case of Hindustan Unilever Ltd. v. Commissioner of CX, ST, Dibrugarh 2023 (10) TMI 991- CESTAT, Kolkata, dealt with identical issue as to whether special value addition applications filed by the assessee for the period 2009-10 to 2016-17 after 30th September of the same year would be construed as time barred or not. In this regard, the Tribunal observed that the Hon'ble Apex Court in the case of VVF Industries (supra) has clearly held that pending refund applications ought to be decided in terms of amended Notification, which were impugned before respective High Courts. Thus, in view of the decision of Hon'ble Supreme Court in the case of VVF Industries, the right to apply for special value addition, as bestowed in the said Notification, was restored and available to the assesses from the date of decision of the Hon'ble Supreme Court. The Appellant also placed their reliance on the decision of the Hon'ble Gauhati High Court in the case of M/s Jyothi Labs Ltd. v. Union of India reported at 2021- VIL-591-GAU-CE, wherein it has been held that application for fixation of special rate, filed after the decision of Hon'ble Supreme Court dated 22.04.2020, cannot be rejected as time barred inasmuch as such right to apply for the special value addition rate arose only after the said decision of Hon'ble Apex Court in VVF Ltd. (supra). In view of the above decisions, the Tribunal in the case of Hindustan Unilever (supra) has held that application filed before the decision of Hon'ble 5 Excise Appeal Nos.75476-75479 of 2014 Supreme Court cannot be construed as time barred. Accordingly, the Appellant prayed for setting aside the impugned orders referred in the four appeals.
5. The Ld. D.R. reiterated the findings in the impugned orders.
6. Heard both sides and perused the appeal documents.
7. We observe that the issue is no longer res integra as an identical issue has been decided by this Tribunal in the case of Hindustan Unilever Ltd. v. Commissioner of CX, ST, Dibrugarh 2023 (10) TMI 991- CESTAT, Kolkata, wherein it has been held that the application filed before the decision of the Hon'ble Supreme Court cannot be construed as time barred. The relevant portion of the said decision is reproduced below:
6. We find that the application for special rate fixing for the period 2009-10 to 2016-17 were initially held that they have filed the applications for fixing special rate after 30th September of the same year and is barred by limitation.
6.1 The said issue has been examined by the Hon'ble Apex Court and the Hon'ble Apex Court in the case of Union of India Vs. V.V.F. Limited reported in 2020 (372) ELT 495 (S.C.), has held that the pending refund application shall be decided as per the subsequent notification/industrial policies, which were impugned before the respective Hon'ble High Courts and they shall be decided in accordance with the law and on merits and as per the subsequent notifications/industrial policies impugned before the respective Hon'ble High Courts. The extracted of orders of the Hon'ble Apex Court is as under :
"........... subsequent notification / amendment in the original notification did not in any way alter the basis of the original first notification of 2001."
".......... once it is held that the subsequent notifications/industrial policies impugned before the respective High Courts are clarificatory in nature and 6 Excise Appeal Nos.75476-75479 of 2014 it does not take away any vested rights conferred under the earlier notifications/industrial policies, .......".
".........that by the subsequent notifications/industrial policies, the rights which have been accrued under the earlier notifications had been taken away "
" On a fair reading of the earlier notifications/industrial policies, it is clear that the object of granting the refund was to refund the excise duty paid on genuine manufacturing activities. ...............................".
"....... it is clarified by the subsequent notifications that the refund of the excise duty shall be on the actual excise duty paid on actual value addition made by the manufacturers undertaking manufacturing activities".
"........ they do not take away any vested right conferred under the earlier notifications".
6.2 Further, the Hon'ble Guwahati High Court in the case of Jyoty Labs reported in 2021 (378) ELT 269 (Gau.), has held that making such application for fixation of special rate under Notification No.32/99-CE and Notification No.31/2008-CE, after the judgement of Hon'ble Supreme Court in the case of V.V.F. (supra) were in time.
6.3 In view of the above, we hold that as all the applications were filed by the appellants before 20.04.2020. In that circumstances, all the applications were filed within time, therefore, the applications in question cannot be rejected on limitation.
8. Following the ratio of the decision cited above, we hold that the applications filed by the Appellant for fixation of special rates of valuation on 29.09.2010, for the FY 2009-10 for each of the units, is not time barred.
7Excise Appeal Nos.75476-75479 of 2014 Accordingly, we set aside the impugned orders which rejected those applications on the ground of time bar.
9. In view of the discussion above, we set aside the impugned orders and allow the appeals filed by the Appellant.
(Operative part of the order was pronounced in the open Court.) Sd/-
(R. MURALIDHAR) MEMBER (JUDICIAL) Sd/-
(K. ANPAZHAKAN) MEMBER (TECHNICAL) Tushar