Jammu & Kashmir High Court
Lupin Limited Epip Kartholi Sidco vs Union Of India And Ors on 3 August, 2023
Bench: Chief Justice, Wasim Sadiq Nargal
Sr. No. 10
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CJ Court
Case No. WP(C) No. 416/2021
Along with connected matters.
Lupin Limited EPIP Kartholi SIDCO .....Appellant/Petitioner(s)
Industrial Complex.
Through :- M/s Gautam Chugh, Amar Partap Singh,
Jatin Mahajan, J A Hamal and Sachin
Gupta, Advocates.
v/s
Union of India and ors. .....Respondent(s)
Through :- Mr. Rohan Nanda, CGSC.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE
ORDER (ORAL)
03.08.2023 N. KOTISWAR SINGH-CJ
01. All these matters are taken up together in view of the common issue involved and disposed of by this order.
02. Without going into the detailed facts of the case it is the admitted position that "education cess" which was earlier imposed, was refunded to the petitioner after excise duty exemption was granted, on the basis of the decision rendered in SRD Nutrients (P) Limited vs. CCE, (2018) 1 SCC 105.
03. Subsequently, the decision in SRD Nutrients came to be overruled by a larger Bench in M/s Uniocorn Industries vs. Union of India, (2020) 3 SCC 492 holding that merely because exemption from payment of excise duty was -2- granted, it does not necessarily mean that exemption can also be granted for education cess. Therefore, on the strength of the decision in M/s Unicorn Industries, the Revenue sought to recover the education cess which was refunded earlier in terms of the decision in SRD Nutrients.
04. However, now this issue has been clarified by the Supreme Court in its latest decision in Special Leave Petition (Civil) Diary No.(s) 18051/2023, „Commissioner of CGST and Central Excise (J&K) versus M/s Saraswati Agro Chemicals Pvt. Ltd.' decided on 04.07.2023 whereby it has been clarified that issues which have been settled on the basis of the decision in vogue at the relevant time, i.e., SRD Nutrients, which allowed refund of education cess which was earlier levied by the Revenue, cannot be recovered on the strength of M/s Uniocorn Industries, by holding that the matter which have been already settled on the basis of a judgment already in operation cannot be reopened merely because there is a change in law.
05. Mr. Rohan Nanda, learned Central Government Standing Counsel, appearing for the respondents fairly submitted that the petitions in hand appears to be covered by the decision rendered by the Supreme Court in SLP (Civil) Dairy No. 18051/2023 and submitted that appropriate orders may be passed in view of the above referred decision.
06. Under these circumstances, we are of the opinion that in view of the aforesaid decision of Supreme Court in M/s Saraswati that if the education cess has already been refunded in terms of the decision rendered in SRD Nutrients, merely because of the subsequent decision in M/s Unicorn, the Revenue cannot seek recovery of the education cess which was already refunded in terms of the SRD Nutrients.
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07. Accordingly, we of the view that the present batch of writ petitions can be disposed directing the Revenue not to seek recovery of the education cess, which had already been refunded in terms of decision in SRD Nutrients, and this order will be applicable to those education cess matters in which refund have been made prior to rendering of the judgment in M/s Unicorn Industries.
08. According, for the reasons stated herein above, the impugned show cause notices/ orders passed pursuant to these show cause notices, issued by the respondents are set aside.
09. Mr. Rohan Nanda, learned counsel for the respondents submits that the petitions challenging show cause notices are not maintainable, as these are premature. However, as we are of the view that in the light of the decision of the Supreme Court in M/s Saraswati issuance of the notices by the Revenue has been rendered infructuous and, accordingly, would be liable to be set aside, irrespective of the issue of maintainability.
10. The petitions are, accordingly, disposed of.
(WASIM SADIQ NARGAL) (N. KOTISWAR SINGH)
JUDGE CHIEF JUSTICE
JAMMU
03.08.2023
SUNITA/PS