In another judgment in the case of Commissioner of Central Excise
and ST, Silvassa vs. M/s. Sanathan Textiles Pvt Ltd (Supra), this tribunal
passed the following order :-
7. Precisely for industrial development so as to bring North-East out
of the industrial backwardness, investors were extended
exemptions/concessions. Now, withdrawal of exemption by reducing the
percentage according to the petitioners is not in keeping with the object of
the industrial policy, in effect, amount to backtracking aimed at depriving
the investors from the benefits of exemptions/concessions extended. The
impugned notification reducing excise duty exemption already stands
quashed by the Gauhati High Court while allowing batch of writ petitions.
The judgment rendered in the writ petitions was assailed by the Union of
India by medium of Writ Appeals Nos.230 and 243 of 2009 before the
Gauhati High Court unsuccessfully as the appeals were dismissed and it
was directed that all the industries set up pursuant to the policy of 1997
and 2007 shall continue to enjoy the benefits of full exemption as per the
policy and notifications. The judgment dated 20.11.2014 rendered in the
writ appeals captioned "Union of India & ors v. Kamakhya Cosmetics &
Pharmaceuticals & ors" has been assailed before the Hon'ble Apex Court
by medium of Special Leave to Appeal (C) No.(s)11878 of 2015, which is
pending.
12. It is important to note here that the company claimed refund of
Basic Excise Duty paid from PLA, in terms of the notification No.32/99 but the
refundable duty was restricted to maximum 56% by the subsequent notification
No.27.03.2008. The assessee was successful with their challenge to the
curtailment notification, before the learned Single Judge but the departmental
challenge to the learned Single Judge's order is now awaiting the final decision in
the SLP(Civil) No.11878/2015 (Union of India Vs. Kamakhya Cosmetics &
Pharmaceuticals Pvt. Ltd.).
The decisions in Modi Rubber (supra) and Rita Textiles
Private Limited (supra) are binding on us being of Co ordinate
Bench, and we respectfully follow them. We did not find any ground
to take a different view.
[3] Learned counsel for the parties jointly pray that the
present petition be disposed in terms of the aforesaid
directions. Ordered accordingly, clarifying that the instant
parties shall be bound by the outcome of the decision rendered
by Hon'ble the Supreme Court in SLP No.1178 of 2015 titled as
Union of India & Ors. versus M/S Kamakhya Cosmetics &
Pharmaceuticals & Ors.
Whereas we find that on the absolutely identical issue that whether payment
of National Calamity Contingent Duty can be made by utilizing the Cenvat
Credit of Basic Excise Duty has been dealt with by the Hon'ble Gauhati High
Court in the case Union of India Vs. Kamakhya Cosmetics Pharmaceutical
Pvt. Ltd., 2015 (323) E.L.T. 33 (Gau.) (Ex.-G) wherein it was held that
payment of education cess can be made by utilizing Cenvat Credit of Basic
Excise Duty.
He
submits that earlier the issue was decided by Hon'ble Guwahati High
Court in the case of UOI Vs. Kamakhya Cosmetics &
Pharmaceutical Pvt. Ltd.-2012 (7) TMI 902 (Guwahati High
Court), which was relied upon by this Bench. Hence, the Learned
Counsel submits that the appeal may be allowed on merits.
He
submits that earlier the issue was decided by Hon'ble Guwahati High
Court in the case of UOI Vs. Kamakhya Cosmetics &
Pharmaceutical Pvt. Ltd.-2012 (7) TMI 902 (Guwahati High
Court), which was relied upon by this Bench. Hence, the Learned
Counsel submits that the appeal may be allowed on merits.