TMI Blog2016 (12) TMI 476X X X X Extracts X X X X X X X X Extracts X X X X ..... n’ble Supreme Court on 07.12.2015 in the I.A. No.3/2015 was made applicable by the Gauhati High Court in all the pending cases and therefore the determination of the amount due in terms of the Court’s interim order, cannot include what was undisputedly paid back as refundable excise duty, which the manufacturers were entitled to receive, irrespective of the outcome of the litigation. Therefore inclusion of those already refunded sum, was not justified for determining the amount due. In our understanding, only the differential amount can be taken into account for deciding what sum to be paid back now to the manufacturer. In other words, 50% of the unpaid amount is the due amount and this must be refunded to the eligible units, subject to furnishing of solvent surety to the satisfaction of the jurisdictional commissioner. It is declared so accordingly. Before we part with the records, it is necessary for us to observe that while relief through the judgment of June 24th 2009 was confined to the writ petitioners, the benefit of the relief was expanded to cover all the industries set up pursuant to policy of 1997 and 2007, under the Division Bench judgment dated 20.11.2014 in the WA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 97/15 as well as in the Cont.Cas(C) Nos.831/15, 4/16; Ms. M.L. Gope, the learned advocate appears for the petitioner in the WP(C) Nos.269/16, 111/16, 265/16, 112/16, 271/16, 261/16, 268/16, 263/16, 272/16, 262/16, 119/16, 267/16, 270/16, 273/16, 266/16, 6114/16, 264/16, 2314/16, 7899/15, 7828/15, 7843/15 as well as in the Cont.Cas(C) Nos.596/15, 598/15, 599/15, 600/15, 601/15, 603/15, 608/15, 609/15, 610/15, 611/15, 612/15, 774/15, 775/15, 776/15, 778/15, 806/15, 808/15, 814/15, 815/15, 41/16, 42/16, 636/16, 637/16; the learned advocate Mr. R.K. Agarwal, appears for the petitioner in the WP(C) No.7692/15 and Mr. R.S. Mishra, the learned counsel appears for the petitioner in the WP(C) No.1126/16. The respondents in these cases are represented by Mr. S.C. Keyal, the learned Asstt. SGI. 3. Common questions are raised in these Writ Petitions and Contempt Cases and arguments of both sides pertain to the same issue and therefore all the cases are disposed of with the following order. 4. In exercise of powers conferred by Sub-Section (1) of Section 5A of the Central Excise Act, 1944, the Union Government issued the Notification No.20/2007- Central Excise, whereby exemption of excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for similar litigations emanating from the Gujrat High Court, the Supreme Court on 13.01.2012 in the SLP(C) Nos.28194 - 28201/2010 passed a different type of interim order on the following terms:- We have heard learned counsel for the parties on the question of stay of the impugned judgment. Having done so, we direct that operation of the impugned judgment shall remain stayed till further orders, subject to the petitioners' releasing to the respondents 50% of the amount due to them in terms of the impugned judgment on the respondents' furnishing solvent surety to the satisfaction of the jurisdictional Commissioner, within four weeks of their furnishing the said surety. 8. Taking a cue from the interim order passed in the Gujarat Cases, the Misc. Case No.1999/2012 was filed in the pending Writ Appeal No.243/2009 and the Gauhati High Court after referring to the Hon ble Supreme Court s order of 13.01.2012 (in the Gujarat Cases), declared on 14.08.2012 that the interim order is modified, in terms of the order of the Hon ble Supreme Court. 9. Eventually the Gauhati High Court did not find any merit in the Writ Appeals filed by the Central Government and through the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court: .. Pending further orders, we direct that subject to the petitioners releasing 50% of the amount due to the respondent in terms of the impugned judgment on the respondents furnishing solvent surety to the satisfaction of the jurisdictional commissioner, the operation of the impugned judgment shall remain stayed. We further direct that contempt proceeding initiated against the petitioners shall subject to their releasing 50% of the amount as stated above remain stayed .. . 12. The departmental authorities however failed to refund the payable amount to the concerned litigants and accordingly Contempt Cases came to be filed in the Gauhati High Court. The Division Bench in the Cont.Cas(C) No.609/2015 and other cases, issued direction on 09.12.2015 to the authorities to comply with the interim order passed by the Hon ble Supreme Court on 07.12.2015, in the I.A. No.3/2015. 13. Following the interim order passed by the Hon ble Supreme Court, the High Court and the order passed in the contempt cases, the Deputy Commissioner of Central Excise ordered for refund of duty to M/s Ozone Ayurvedics (Unit-II), through his order dated 12.02.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solution of this issue by the Court is pressed forward not only by the petitioners but also by the learned Asstt. Solicitor General of India, for guidance of the departmental authorities. 15. The issue to be considered in these cases is the meaning of the expression amount due in terms of the impugned judgment, referred to by the Hon ble Supreme Court in their order dated 07.12.2015 in the I.A. No.3/2015. The challenge in the Gauhati High Court was to the curtailment notification(s) dated 27.03.2008 and 10.06.2008, whereby the excise duty refund was restricted to a maximum limit as specified in the rate column of the table appended to the impugned notification, whereby the different rates of refund ranging from 15% 75%, was permitted to be paid back to the manufacturer. The focus of the litigation related to whether the concerned manufacturer will be entitled to 100% excise duty exemption, as was envisaged by the notification of 25.04.2007 or will receive exemption at lesser rates, as specified in the curtailment notification(s) dated 27.03.2008 and 10.06.2008. At no stage it was the stand of the department that the manufacturer will receive benefit of exemption at a lesser ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the amount due to the units as per the court s interim order, the determination of the refundable amount cannot must exclude the sum which were already received by the petitioners. Therefore the calculation of the 50% of the refundable duty should co- relate to the differential sum only. 19. When the refundable amount was calculated for one of the successful litigants i.e. M/s Ozone Ayurvedics (Unit-II), the Asstt. Commissioner of Central Excise, on the first occasion (09.07.2015) looked at the duty amount paid on clearance of finished goods from the PLA and then took into account the refundable amount at the lesser specified rate (under the impugned notification dated 27.03.2008). For this unit, the differential amount was determined by, subtracting from the amount deposited through PLA, the sum already refunded by the impugned notification. Thereafter, in terms of the interim order passed by the Hon ble Supreme Court, 50% of the differential due was calculated by the Commissioner. This methodology in our opinion, reflects the correct amount due, mentioned by the Hon ble Supreme Court, in its order dated 07.12.2015 in the I.A. No.3/2015. Hence, any lesser amount quantified a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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