9911796707
TMI Blog2021 (2) TMI 828X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Judgment of this Hon'ble Court rendered in the case of "Amalgamated Plantations Limited", wherein this court held that the interest on delayed refund is payable by the Central Excise department as per Notification No. 32/99-CE and 33/99- CE dated:- 08.07.1999. 2. The facts necessary and essential in the present proceedings are that the petitioner no. 1 company is incorporated under the Companies Act, 1956 having its registered office at "VRAJ", 62/13, Promotesh Baruah, Sarani, Kolkata -700019, West Bengal. The petitioner No.2 is the Muttuck Tea Estate which used to be under the ownership of the M/S Hindustan Lever Limited and thereafter under M/S Rossell Industries Limited. Ultimately, the Tea Estate came to be under the ownership of the petitioner no.1 company. Both the petitioners are represented in the present proceedings by Mr. Ashok Sanghvi, Assistant General Manager- Finance & Taxation of the petitioner No. 1 company. 3. The pleaded case of the petitioner is that the Government of India by the 'North East Industrial Policy' (NEIP), 1997 announced a new package of fiscal incentives and other concessions for the North East region by the said policy. The various incentiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y One only) holding the same to be time barred. 6. Being aggrieved, the petitioners filed (Appeals) before the Commissioner Central Excise, Customs and Service tax (Appeals) at Guwahati. The Commissioner (Appeals) vide order dated:- 24.12.2012 allowed the appeals of the petitioners and held that it would be unfair to reject the claim of refund submitted by the petitioners on the grounds of delay. Against the order of the Commissioner (Appeals), the Revenue preferred a further appeal before the Central Excise, Customs and Service Tax Appellate Tribunal, in Kolkata (CESTAT). The CESTAT by common Judgment and order dated:- 29.02.2016 allowed the appeals of the Revenue holding that a statement is required to be filed in order to claim refund under the Notification and filing of RT-12 cannot be considered to be a proper statement. Being aggrieved by the order of the CESTAT dated:- 29.02.2016, the petitioners filed a Central Excise Appeal before this Hon'ble Court and the same was registered and numbered as Central Excise Appeal No. 08/2016. This Hon'ble Court vide Judgment and order dated 20.02.2018 allowed the Appeal and set aside the order dated 29.02.2016 passed by the CESTAT. The H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tified. We also hold that statements of duty paid submitted in RT-12 returns by the appellant was substantial compliance of Clause 2(a) of the Notification and there was no need for it to submit a separate statement of the duty paid and claim refund. The Tribunal itself earlier in number of cases viz. Commissioner of Central Excise vs. Vinay Cement Ltd., 2002 (147) E.L.T. 74; Commissioner of Central Excise vs. Napuk Tea Estate, 2007 (219) E.L.T. 178 and Dhunseri Tea Estate vs. Commissioner of Central Excise, 2011 (274) E.L.T. 590 has held that statements of duty paid submitted in RT-12 returns amounts to full compliance of Clause 2(a) of the Notification and refund of duty paid cannot be denied for want of separate statement of such duty paid. A long standing decision adopting a particular construction which may have been acted upon by persons in the general conduct of affairs may not be departed from on the doctrine of stare decisis. With these findings, we answer all the substantial questions of law in favour of the appellant. We accordingly set aside the impugned order dated 29.2.2016 passed by the Tribunal and allow the appeals with cost of Rs. 3000/-." 7. That after, the Judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 012. This Hon'ble Court by its order dated:- 14.03.2016 dismissed the review petition filed by the revenue and rejected the contentions of the revenue. The revenue further carried the matter to the Supreme Court by filing an SLP. The Apex court on the ground of Limitation by order dated 09-12-2016 dismissed the Appeal (SLP) preferred by the Revenue. Under these circumstances the law laid down by this Court in the case of Amalgamated Plantations (P) Ltd has attained finality and being the jurisdictional High Court, the same is binding upon the Revenue Authorities. The learned Senior Counsel submits that in terms of the ratio laid down in the case of Amalgamated Plantations, the revenue was bound to allow the claims of interest on delayed refund of Excise duty. Accordingly, it is submitted that the rejection of the claims of the interest on delayed refund of Central Excise Duty by the Revenue by the impugned order dated:- 31.12.2018 is bad in law and the same should therefore be set aside and quashed. 11. The learned Senior counsel further submits that the impugned order while rejecting the claims of interest of Excise duty was premised inter alia on incorrect facts in as much as at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apply to Notification No. 32/99-CE and 33/99-CE both dated 08.07.1999 and accordingly the claims of the petitioners for interest on delayed payment under Notification No. 33/99-CE dated 08.07.1999 cannot be entertained. Such a view, according to Dr. Saraf is completely opposed and contrary to the ratio laid down by this court in the case of Amalgamated Plantation (P) Ltd. The learned Senior counsel strenuously submits that once the jurisdictional High Court has laid down the law declaring that the provisions of section 11B and 11BB will be equally applicable for Excise duty refunds made in respect to Notifications No. 32/99-CE and 33/99-CE both dated 08.07.1999, and the review petition before this Hon'ble court and the SLP before the Apex Court having been dismissed, such interpretations sought to be made by the Deputy Commissioner in his impugned order besides being contrary and opposed to the law laid down by this court in the case of Amalgamated Plantation is also contumacious. Accordingly, the learned Senior counsel submits that the impugned order being arbitrary and issued without any application of mind is bad in law as the same being contrary to the law laid down by this co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nother 1987 SCC Online AP 275:- In this case the Andhra Pradesh High Court observed that held that while dealing with a contempt case arising out of a non compliance of the orders of the high Court by revenue authorities of the state the High Court held that there are innumerable case which the High Court had come across where the authorities observed with impunity that they cannot follow the decision of this Court o a verity of grounds like pendency of an appeal or an SLP before the Supreme Court. By this order, the High Court while disposing of the contempt petition put to notice all the respondent concerned that the High Court would not hesitate to take stern action for contempt if the decisions of the High Court are disregarded unless they are suspended by orders of a Supreme Court. 6. Hot Millions -Vs- Union Territory, Chandigarh and Anr. 1990 SCC Online P & H 1288:- In this case the Punjab and Haryana High Court held that mere filing of an SLP before the Supreme Court would operate as a stay order and accordingly the respondent were directed to implement orders of the Punjab and Haryana High Court passed in the writ petition referred therein. 7. Nicco Corporation Ltd. -Vs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the revenue authorities. 14. Union of India -Vs- Amalgamated Plantations (P) Ltd. (2016) 5 GLR 403:-The review petition against the judgment above which was dismissed by a Division Bench of this Court upholding the judgment of the Division Bench dated 08-11-2012. 15. Builders Association of India -Vs- Union of India & Ors (1995) supp (1) SCC 41:- This judgment is relied on by the learned senior counsel to contend the reference to the CBCE (Central Boards of Custom and Excise) circulars to the effect that under section 11B of the Central Excise Act 1944 is not applicable in case of refunds made under notification no. 32/99-CE dated 08-07-99, cannot be a ground to deny the interest claim by the petitioner in view of the judgment passed by this Court having a binding effect not on the revenue authorities. In this case the Apex Court in reference to a circular, in the context of the facts of the case therein, held that the circular has no significant relevance as an instructions or directions under section 119 vis-à-vis section 32A of the Income Tax Act 1961. 16. Keshaviji Ravji and Co. and Ors -Vs- Commissioner of Income Tax (1990) 2 SCC 231:- In this case with regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their understanding of the statutory provisions. They are binding open to the Court. 22. Commissioner of Income Tax -Vs- Blaze Advertising (Delhi) Pvt. Ltd. 2001 SCC Online Del 1337:- In this case the Delhi High Court relied on the judgments of the Apex Court rendered in the case of Hindustan Aromatic held that when the Supreme Court or High Court has declared a law on a question it is not open to the Court to direct that the circular should be given effect to and not decision. 23. Reiter Machine Works Ltd. -Vs- Commissioner of Income-Tax and Another, 1994 SCC Online Mad 668:- In this case the Madras High Court has held that that a circular by the department cannot provide guidance in a matter of construction to be pleased on the scope of provisions by a Court. Circular and interdepartmental communications cannot confer any rights or provide any legal basis to claim any right enforceable before a court of law excising jurisdiction under 226of the Constitution of India. 14. Opposing the contentions made by the learned counsel for the petitioners, Mr. S.C. Keyal, learned standing counsel representing the Goods and Service Tax Department submits that there is no infirmity in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application in refunds made under Notification No. 32/99 and 33/99 both dated 08-07-1999. 15. In support of his contentions, Mr. Keyal relies on the judgment of the Apex Court in the case of Commissioner of Custom (import) vs- Dilip Kumar and Company reported in (2018) 9 SCC 1 and refers to paragraphs 40, 41 and 42 of the judgment which contended below: 40. The aforesaid placitum is suggestive of the fact that the Courts utilised the rule of strict interpretation in order to decipher the intention of the legislature and thereafter provide appropriate interpretation for the exemption provided under the provisions of the Act which was neither too narrow nor too broad. It may be noted that the majority did not take a narrow view as to what strict interpretation would literally mean; rather they combined legislative intent to ascertain the meaning of the statute in accordance with the objective intent of the legislature. 41. On the contrary, the minority opinion of B.P. Sinha, J. (as his Lordship then was) provided a purposive interpretation for Section 5(2)(a)(iii) of the Act, which is clear from the following passage: (CTO case [Union of India v. CTO, AIR 1956 SC 202], AIR p. 21 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benefit, the manufacturer shall submit a statement of duty paid, by utilization of CENVAT credit under the CENVAT Credit Rules 2001, to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise as the case may by the 7th day of next month to the month under consideration. Thereafter, the Assistant Commissioner or the Deputy Commissioner of Central Excise as the case may be upon due verification determine the amount refunded to the manufacturer by the 15th day of the month to the month under consideration. 18. A perusal of the judgment and order dated 08-11-2012 rendered in Amalgamated Plantation (P) Limited by this Court reveals that if any refund of Excise Duty is ordered under section 11B the same has to be refunded within 3 (three) months of receipt of application under Sub-Section 1 of that section failing which interest will have to be paid. This Court in Amalgamated Plantation Limited held that the language of section 11B is very clear and unambiguous. This Court held that language of Section 11B does not differentiate between any kind of Excise Duty refund, whether duty paid in excess or duty paid which are exempted. This Court ultimately hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of excise paid by the applicant is refundable, he ma y make an order accordingly. 28. Under section 11BB of the Central Excise Act, 1944, if any duty ordered to be refunded under sub-section (2) of section 11B to any applicant is not refunded within three months from the date of receipt of application under sub-section (1) of that section, there shall be paid to that applicant interest at such rate which may be fixed by the Central Board of Excise and Customs on such duty from the date immediately after the expiry of three months from the date of receipt of such application till the date of refund of such duty. 29. From a conjoint reading of sections 11B and 11BB of the Central Excise Act, 1944, it is apparent that if any refund of excise duty is ordered under section 11B(2), the same has to be refunded within three months from the date of receipt of application under sub section (1) of that section, failing which interest will have to be paid. Language of section 11B is very clear and unambiguous. It speaks of claiming refund of any (emphasis ours) duty of excise. No exception is provided. It does not distinguish or differentiate between any kind of excise duty refund, wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 14- 03-2016 dismissed the Review Petition and maintained the earlier judgment and order passed in this Court. The Review Petition was preferred by the Revenue that therefore two (2) Central Government Circulars dated 19-12-2002 and 08-12-2006 whereby it was provided that the provisions of Section 11B of the Central Excise Act, 1944 would not be applicable in case of exemption notification dated 08-07-1999. However, as stated above, the Review Petition preferred by the Department was accordingly rejected on the grounds and reasons mentioned therein. The relevant paragraphs of the judgment of this Court rendered in Union of India v. Amalgamated Plantations (P.) Ltd. are extracted below:- "16. Review has been sought for on the ground that two Central Government circulars dated 19.12.2002 and 8.12.2006 have made it clear that provision of section 11B of the Central Excise Act, 1944 would not be applicable in case of exemption notification dated 8.7.1999. On the basis of the above two circulars it is contended that writ petitioner would not be entitled to interest on the delayed refund of excise duty. Though this argument was advanced before the writ court, yet the writ c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred by the Revenue. Accordingly as of today the Judgment and order passed in Amalgamated Plantations (P) Limited holds the field that Section 11BB is equally applicable to exercise refunds made under Notification No. 33/99 dated 08-07-1999. 22. The Apex Court has time and again summarized the importance and requirement of maintaining judicial discipline by quasi judicial authorities. In the case of Kamalakshi Finance Corporation Ltd. reported in 1992 Supp (1) SCC 443 the Apex Court has held that: "6.....................it is of utmost importance that, in disposing of the quasi-judicial issues before them, revenue officers are bound by the decisions of the appellate authorities; The order of the Appellate Collector is binding on the Assistant Collectors working within his jurisdiction and the order of the Tribunal is binding upon the Assistant Collectors and the Appellate Collectors who function under the jurisdiction of the Tribunal. The principles of judicial discipline require that the orders of the higher appellate authorities should be followed unreservedly by the subordinate authorities. The mere fact that the order of the appellate authority is not "acceptable" to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on no material, either legal or factual which would have given him the jurisdiction to take action under Section 263 of the Income Tax Act." The effect of the interpretation of the provisions of the statute by a Departmental circular vis-à-vis the law laid down by the jurisdictional High Court. The principle summarized by the Apex Court can be culled out as under:- 25. The Apex Court in the case of Keshavji Ravji & Co. v. CIT, (1990) 2 SCC 231 held- "32. This contention and the proposition on which it rests, namely, that all circulars issued by the Board have a binding legal quality incurs, quite obviously, the criticism of being too broadly stated. The Board cannot pre-empt a judicial interpretation of the scope and ambit of a provision of the 'Act' by issuing circulars on the subject. This is too obvious a proposition to require any argument for it. A circular cannot even impose on the tax payer a burden higher than what the Act itself on a true interpretation envisages. The task of interpretation of the laws is the exclusive domain of the courts. However, - this is what Sri Ramachandran really has in mind - circulars beneficial to the assessees and which tone down ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above principles culled out from the various Judgments of the Apex Court it is seen that once the judicial pronouncement is made by the High Court or by the Supreme Court, unless the same is subsequently interfered with by judicial means, the same will have a binding effect on all Subordinate Authorities including the quasi judicial authorities like the respondent in the present case. Unless the respondent Department come up in any appeal and seek to reagitate the issues already decided by this Court, they cannot, by referring to departmental circulars seek to arrive at a contrary view and/or even attempt to disregard the judgment of the jurisdictional High Court holding the field at the moment. 28. The judgment of the Apex Court rendered in Commissioner of Custom (import) vs- Dilip Kumar and Co. (supra) is pressed into service by Mr. S.C. Keyal, learned standing counsel appearing for the respondent to refer to the principle of interpretation of taxing statute. In this judgment the Apex Court has held that where there is an ambiguity in an exemption notification or exemption clause, then the benefit of such ambiguity cannot be extended to the subject/assessee by applying the prin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
