TMI Blog2021 (9) TMI 1046X X X X Extracts X X X X X X X X Extracts X X X X ..... was in operation requiring a refund of 50% of the amount involved, no occasion had arisen for the assessee to claim for the fixation of a special rate in respect of the value addition to the manufactured goods. The dominant purpose of the two notifications i.e. amended notification No.32/99-CE dated 18.07.1999 and the notification No. 31/2008-CE dated 10.06.2008, is the bestowing of a legal right to the assessee to opt for the fixation of a special rate in respect of the value addition to a manufactured goods. The requirement that such applications are to be made not later than 30th day of September of the given financial year is a provision for streamlining the procedure for making such application and to avoid the situation where the process of making such applications would be a never ending matter. Without going into the aspect whether the requirement to submit such application within 30th September of the given financial year is a mandatory requirement or a directory requirement, what we take note of is that such a provision has been incorporated to streamline the process for submission of the application seeking for the fixation of a special rate to the value addition t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assailed by the petitioner and some other similarly aggrieved manufacturers by way of WP(C) No.1789/2008 and other writ petitions. 4. One of the ground for assailing the notifications was based on the doctrine of promissory estoppels. WP(C) No.1789/2008 was given a final consideration by the judgment dated 24.06.2009, by which the notifications impugned dated 27.03.2008 and 10.06.2008 were held to be not sustainable in law and were accordingly set aside and quashed. The intra-Court appeal that was carried against the judgment of the learned Single Judge by the respondent authorities which was numbered as WA No. 243/2009, resulted in the judgment dated 20.11.2014, by which the judgment rendered by the learned Single Judge was upheld, meaning thereby that the interference with the notifications impugned was sustained. The respondents in the Union of India carried an appeal before the Supreme Court against the judgment in the writ appeal resulting in SLP No.11878/2015. In the said proceeding, the Supreme Court had passed an interim order dated 07.12.2015, wherein the following as extracted was provided:- Pending further orders, we direct that subject to the petitioners relea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mption granted under the Northeastern Industrial Policy of 1997 which was earlier available would now be not available to the assessees. 8. In the resultant situation, there is also a requirement under the law for the assessees to refund the 50% amount that as was paid to them pursuant to the interim order dated 07.12.2015 of the Supreme Court. 9. In the aforesaid background, the petitioner relies upon a notification No.32/99-CE dated 18.07.1999, as amended, and notification No. 31/2008-CE dated 10.06.2008 which inter-alia provides that notwithstanding anything contained in paragraph 2A therein providing for the value additions to the manufactured goods, the manufacturer shall have the option not to avail the rates specified in the table and instead apply to the Commissioner of Central Excise or the Commissioner of Customs and Central Excise, as the case may be, having jurisdiction over the manufacturing unit of the manufacturer, for fixation of a special rate representing the actual value addition in respect of any goods manufactured and cleared under the said notifications. 10. The implication of the said provision would be that irrespective of the rates prescribed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it would be inappropriate for the department to proceed against the petitioners as per the rates provided in the Notification dated 27.03.2008. 8. In view of the above, as agreed by the learned counsel for the parties, this petition stands disposed of by directing the Principal Commissioner of GST Guwahati to consider the aforesaid application of the petitioner dated 28.09.2020 claiming for a special rate to be fixed on the basis of the add-ons made to the goods manufactured. After arriving at the special rate, if any as per the order to be passed by the Principal Commissioner, GST further process against the petitioner as per law may be initiated. Till such decision is taken, no coercive measure be taken against the petitioner pursuant to the communication impugned dated 01.01.2021. 12. From paragraph 7 of the order dated 03.03.2021, it transpires that the issue involved in the said writ petition was that the respondents intended to attach the bank account of the petitioner on the premises that the refund of the excise duties shall be as per the notification dated 27.03.2008, without considering the legal right of the petitioner assessee for fixation of a special rat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds the effect of the judgment of the Division Bench in the writ appeal concerned and the stay by the Supreme Court by the order dated 07.12.2015 on the said judgment. The issue before this Court is that whether under the notification No.32/99-CE dated 18.07.1999 as amended and the notification No. 31/2008-CE dated 10.06.2008 the manufacturers are entitled to have an option not to avail the rates specified in the tables contained in the notifications and whether they have a legal right to request the authorities for fixation of a special rate as per the actual value additions to the manufactured goods. Another aspect to look into is whether as per the notifications, such applications requesting for fixation of a special rate are to be made within 30th September of the given financial year for which such claim is made. 16. In the instant case, it is the case of the petitioner that the requirement of requesting for fixation of a special rate in respect of the value addition to the manufactured goods had arisen only after the final judgment of the Supreme Court on 22.04.2020, inasmuch, as long as the matter was pending before the Supreme Court and the interim order dated 07.12.2015 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect of the value addition to the manufactured goods for the purpose of payment of the excise duty, the application for such request was made within a period of five month, which is on 28.09.2020. From such point of view, it cannot be wholly said that the petitioner would now be prevented from claiming their legal right for fixation of a special rate to the value addition to the manufactured goods merely because such application was not made within 30th September of that given financial year to which the claim for fixation of the said rate pertains to. 19. In the peculiar facts and circumstances of the present case, where the necessity for making of a request for fixation of the special rate for the value addition to the manufactured goods may not have occasioned earlier, we deem it appropriate that the Principal Commissioner of GST, Guwahati decides the application of the petitioner dated 28.09.2020 on its own merit as regards the claim for fixation of a special rate to the value addition to the manufactured goods of the given financial year. We also take note of that in the earlier order dated 03.03.2021 in WP(C) No.617/2021, it was an agreed stand of the respondent GST Depa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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