TMI Blog2014 (2) TMI 550X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of the appeal filed by the appellant after only giving them an opportunity of arguments on the stay application ? ii) Whether the Courts below have correctly appreciated the fact that Section 11A of the Central Excise Act, 1944 prescribed for issuance of a show cause notice and limitation thereunder for demand of duty in the facts of the present case while confirming the demand of duty and interest thereon ? (iii) Whether the Hon'ble CESTAT has appreciated the fact that if the recovery was to be made simplicitor under Section 154(4) of the Finance Act, 2003 as a result of withdrawal of exemption retrospectively then whether the machinery provided of the special procedure and independent mechanism provided for the recovery and the interest chargeable had been duly followed by the department while confirming the demand ? iv) Whether the Hon'ble CESTAT was correct in confirming interest on the duty amount in the light of the amended provisions of Section 11AB when confirming interest on duty and refund amount for the period prior to 2001 ? v) Whether the CESTAT failed to appreciate that the Commissioner of Central Excise, Shillong by passing an ex parte order without giving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt was completed on 31.10.2007, in view of retrospective withdrawal of exemption and that was held to be proper by Hon'ble Supreme Court in R.C. Tobacco's case, it is not possible to hold that the adjudication was made beyond the scope of amendment of law. 13. It was accordingly held by the Hon'ble Supreme Court in para 29 of the Judgment in R.C. Tobacco's case that Parliament cannot be blamed for having at least awaited the decision of the High Court nor can the statutory provision be question as being unreasonably retrospective (see : Rama Krishna vs. State of Bihar - AIR 1963 SC 1667). It was also held in Para 30 of the Judgment that when the Supreme Court reversed the view of High Court the litigant has to bear the burden of duty for the period they had manufactured the excisable goods. It was further held that by enacting Section 154, Parliament has fore-stalled the decision by this Court and in effect taken away the basis for decisions of the High Court. Under the circumstances, it cold not be said that financial burden was enforceable or unforceable. Following such principle, mere transfer of the matters from Hon'ble High Couirt of Guwahati as noticed in the Order of Adj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ability interest shall also be payable in terms of Section 154(4) of the Finance Act, 2003. The recovery having been directed to commence after assent of the President that does not create any confusion on the point of limitation of the proceeding. Therefore we hold that the recovery of the duty with applicable interest, shall be proper in the eyes of law and denial of refund shall also be justified. 3 We have heard learned counsel for the parties. 4. Learned counsel for the appellant submitted that the order passed in declining to accept the claim for refund and in directing payment of excise duty covered by the exemption notification was violative of principles of natural justice. The show cause notices issued to the petitioner are dated 28.08.2001 and 10.09.2001 while the retrospective amendment was introduced in the year 2003 and thus the appellant had no opportunity to contend that the benefit could not be retrospectively withdrawn, having regard to the individual facts and circumstances of the case of the appellant. Upholding of retrospectivity of withdrawal of exemption did not debar the adjudicating authority to go into the question of retrospectivity being arbitrary a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w. As was held by this Court in Chhotabhai Jethabhai Patel and Co. v. Union of India, 1962 Supp (2) SCR 1 : AIR 1962 SC 1006 (SCR p. 30) If by reason of Article 265 every tax has to be imposed by 'law' it would appear to follow that it could only be imposed by a law which is valid by conformity to the criteria laid down in the relevant articles of the Constitution. These are that the law should be (1) within the legislative competence of the legislature being covered by the legislative entries in Schedule VII of the Constitution; (2) the law should not be prohibited by any particular provision of the Constitution such as, for example, Articles 276(2), 286, etc. and (3) the law or the relevant portion thereof should not be invalid under Article 13 for repugnancy to those freedoms which are guaranteed by Part III of the Constitution which are relevant to the subject-matter of the law. 21. A law cannot be held to be unreasonable merely because it operates retrospectively. Indeed even judicial decisions are in a sense retrospective. When a statute is interpreted by a court, the interpretation is, by fiction of law, deemed to be part of the statute from the date of its enactment. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alidated as if the notifications as amended had been in force when the orders were passed. 49. We are not in a position to determine the disputes raised. However, we cannot lose sight of the fact that although excise duty like other indirect taxes may be passed on to the customer of the goods under the law as it now stands, it is the manufacturer of the excisable goods to whom the Excise Authorities will look for payment. How the manufacturer will adjust its liability with its customers does not concern the respondents nor can they be asked to recover their dues from persons who may have ultimately taken over the responsibility to pay the excise duty as a result of an agreement with the manufacturer. (See in this connection State of Rajasthan v. J.K. Udaipur Udyog Ltd. (2004) 7 SCC 673 SCC at p. 692.) 50. Furthermore having upheld the constitutional validity of Section 154 it would be a pyrrhic victory for the Union of India if they could not in fact recover the tax. It is not a case where the legislation has merely withdrawn the exemptions. The consequences of the withdrawal have been statutorily provided for including the recovery of the excise duties refunded or not paid. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
