TMI Blog2016 (2) TMI 529X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner’s unit, the petitioner cannot, thus, seek the benefit of quashing of the decision communicated by the Ministry of Finance by letter dated 30.09.2014. The power under Section 11C is discretionary and it is not mandatory for the Government to issue a notification under Section 11C under all circumstances. As emerges from the counter affidavit, the policy of the Government is to issue such a notification only if it benefits a large section of the trade and not if it benefits only a few assessees. As per the respondent, only two manufacturers would be affected by such a notification. We do not find any fault with such a view and decision of the Government. We are further of view that discretion is granted to the Government to issue or not to issue such a notification and the discretion has been exercised after conducting survey and resurvey and on a justifiable ground, the said decision, in our view, does not require any interference. - Writ petition dismissed - Decided against the assessee. - WP (C) 2885/2015 & CM No. 5176/2015 (stay) - - - Dated:- 16-2-2016 - Badar Durrez Ahmed And Sanjeev Sachdeva, JJ. For the Petitioner : Mr Prashant Bhushan and Mr Rohit Ku ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the Bhatti process became entitled for exemption for excise duty. 5. The Notification dated 18.06.1977 was rescinded by Notification No.180/86 CE dated 01.03.1986 and superseded by another Notification No.167/86 CE dated 01.03.1986 under which units manufacturing rosin and turpentine without use of power continued to be exempted. 6. By circular No.38/38/94 CX dated 27.05.1994, all circulars/instructions/tariff advises issued prior to March 1986 were withdrawn. It is contended by the petitioner that despite withdrawal of the earlier circulars/instructions/tariff advises, all manufacturers using Bhatti process, including the respondents, remained under the impression that the clarification of 1978 was still in operation. As no excise duty was levied on any of the Bhatti units till 2003/2004, when for the first time show cause notices were issued to two units one being the petitioner s unit. 7. It is contended that thereafter by Notification No.21/2006 CE dated 01.03.2006, the Notification dated 01.03.1986 granting exemption from excise duty to those units manufacturing without the aid of power was also rescinded. 8. The dispute pertains to the period from 27.05 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, the Central Government may, by notification in the Official Gazette, direct that the whole of the duty of excise payable on such goods, or, as the case may be, the duty of excise in excess of that payable on such goods, but for the said practice, shall not be required to be paid in respect of the goods on which the duty of excise was not, or is not being, levied, or was, or is being, short- levied, in accordance with the said practice.] (2) Where any notification under sub- section (1) in respect of any goods has been issued, the whole of the duty of excise paid on such goods or, as the case may be, the duty of excise paid in excess of that payable on such goods, which would not have been paid if the said notification had been in force, shall be dealt with in accordance with the provisions of sub- section (2) of section 11B: Provided that the person claiming the refund of such duty or, as the case may be, excess duty, makes an application in this behalf to the Assistant Collector of Central Excise, in the form referred to in sub-section (1) of section 11B, before the expiry of six months from the date of issue of the said notification. 12. A reading of Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show cause notices in the case of the petitioner before the Tribunal. 17. Meanwhile, as the Department had filed an appeal against the decision of the Tribunal in M/s Gurukripa Resins Pvt. Ltd. before the Supreme Court, the Tribunal kept the appeal of the Department in the petitioner s case pending to await the decision of the Supreme Court in M/s Gurukripa Resins Pvt. Ltd.. 18. The Supreme Court by its judgment dated 11.07.2011 in the case of M/s Gurukripa Resins Pvt. Ltd., (2011) 13 SCC 180), held that the process of lifting of water into cooling tank was integrally connected with the manufacture of its goods and, hence, if power is used for lifting of water, the exemption would not be available. The Supreme Court further held that the circular of 1978 was not applicable since the same stood withdrawn in 1994. 19. In view of the decision of the Supreme Court, the Tribunal upheld the show cause notices in the case of the Petitioner, however, held that the Department could not go beyond the limitation period of one year to recover the excise duty. Both the Department as well as the petitioners have challenged the said decision of the Tribunal before the High Court of Judi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s Gurukripa Resins Pvt. Ltd., which was one of the parties involved. 24. The decision of the Central Government has been taken on the basis of the survey and resurvey conduced. It is contended that a notification, if issued under Section 11C, would benefit only two units, the petitioner and M/s Gurukripa Resins Pvt. Ltd. 25. As noticed above, the power under Section 11C is discretionary and it is not mandatory for the Government to issue a notification under Section 11C under all circumstances. As emerges from the counter affidavit, the policy of the Government is to issue such a notification only if it benefits a large section of the trade and not if it benefits only a few assessees. As per the respondent, only two manufacturers would be affected by such a notification. The Government has taken a decision not to issue such a notification as it would benefit only two assessees and would also amount to overriding the decision of the Supreme Court in the case of one of such assessees. We do not find any fault with such a view and decision of the Government. We are further of view that discretion is granted to the Government to issue or not to issue such a notification and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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