TMI Blog2021 (12) TMI 904X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, whether condonable or not stood extended from 15.03.2020 till 02.10.2021 and it was further provided in para-II of the order dated 23.09.2021 in M.A. No. 665/2021 as follows II. In cases where the limitation would have expired during the period between 15.03.2020 till 02.10.2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 03.10.2021. In the event actual balance period of limitation remaining, with effect from 03.10.2021, is greater than 90 days, that longer period shall apply. Issue notice returnable on 10.01.2022. Extra copies of the writ petition be served on the learned CGC as well as on the learned Standing counsel for the respondent nos. 2 and 3 - List on 10.01.2022. - Case No. : WP(C)/6483/2021 - - - Dated:- 10-12-2021 - Honourable Mr. Justice Kalyan Rai Surana For the Petitioner : Ms. M L Gope For the Respondent : Asstt. S.G.I. ORDER Heard Ms. N. Havelia, learned counsel for the petitioner. Also heard Mr. H. Gupta, learned CGC, appearing for the respondent no. 1 and Mr. S.C. Keyal, learned standing counsel for the respondent nos. 2 and 3. 2) By filing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the judgment passed in W.A. 243/2009 and the said Hon ble Court by order dated 07.12.2015 in IA No. 3/2015 in SLP(C) No.11878/2015, stayed the operation of the impugned judgment dated 20.11.2014 in WA No. 243/2009, inter alia , directing the authorities to release 50% of amount due to the respondent therein in terms of the judgment subject to furnishing solvent surety to the satisfaction of the jurisdictional Commissioner and on such condition, the contempt proceeding against the concerned Excise officials was also stayed. It is projected that thereafter the respondent authorities had released to the petitioner refund of ₹ 4,63,28,360/-. 4) The Civil Appeal No. 2256-2263/2020, filed by the revenue, which included the case of the petitioner, was allowed by the Supreme Court of India by order dated 22.04.2020. Thereafter, the respondent no. 3 had served to the petitioner notice dated 01.01.2021 for recovery of the excess amount of refund so paid to the petitioner as per Section 11A of the Central Excise Act, 1944. It is projected that the petitioner was unaware of the dismissal of their Civil Appeal by the Supreme Court of India because of lock-down in Tinsukia Town and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disposed of before realizing refund. In support of his submissions, the learned counsel for the petitioner has placed reliance on (i) judgment and order dated 12.08.2021 passed by this Court in W.P.(C) 3569/2021 (M/s. Jyothy Labs Ltd. v. The Union of India 2 others ), and (ii) orders passed from time to time by Supreme Court of India in Re: Cognizance for Extension of Limitation, SMW(C) No. 3/2020 , and (iii) orders passed from time to time by Supreme Court of India in Re: Cognizance for Extension of Limitation, M.A. No. 665/2021 in SMW(C) No. 3/2020 . 7) Per contra, the learned standing counsel for the respondent nos. 2 and 3 has submitted that the demand for refund was occasioned because the interim order which was passed by the Supreme Court of India was conditional and that the Central Excise Department had made conditional refund of 50% of excise duty paid because of the terms imposed by the Supreme Court of India in challenge made against the appellate judgment of this Court in W.A. No. 243/2009, whereby the petitioner had submitted solvent surety. Accordingly, it is submitted that the petitioner was required to refund the excise duty assessed with interest and penalty. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but for any other purpose as well; (ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person; (iii) Exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged; (iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law; (v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not applicable to it and challenged the jurisdiction of the taxing authorities to issue such a notice, before the High Court in its writ jurisdiction. The High Court entertained the writ petition. When the judgment of the High Court was appealed before this Court, it held that the High Court did not commit any error in exercising its jurisdiction in respect of the challenge raised on the jurisdiction of the revenue authorities. This Court made the following observations: 81. Should the courts determine on merits of the case or should they preferably answer the preliminary issue or jurisdictional issue arising in the facts of the case and remit the matter for consideration on merits by the competent authority? Again, it is somewhat difficult to state with absolute clarity any principle governing such exercise of jurisdiction. It always will depend upon the facts of a given case. We are of the considered view that interest of administration of justice shall be better sub-served if the cases of the present kind are heard by the courts only where they involve primary questions of jurisdiction or the matters which go to the very root of jurisdiction and where the authorities have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld to BSEB. There is no dispute about the nature of the transaction between the appellant and BSEB. The petition before the High Court was initially tagged with the petition filed by NTPC since it involved similar issues. However, it was subsequently de-tagged and heard separately on the ground that the appellant in this case is a sugar mill that also produces electricity, while NTPC is a power generation company. The writ petition filed by the appellant was dismissed by the impugned judgment. Both the petitions - filed by the appellant and NTPC before the High Court challenged the power of the State Government to levy tax on sale of electricity to Electricity Boards. A three judge Bench of this court in Sree Meenakshi Mills Ltd. v Commissioner of Income Tax, AIR 1957 SC 49 succinctly explained the tests for the identification of questions of fact, questions of law and mixed questions of law and facts. Justice T. L. Venkatarama Aiyar writing for the Bench observed that: 9. [..] To take an illustration, let us suppose that in a suit on a promissory note the defence taken is one of denial of execution. The court finds that the disputed signature is unlike the admitted signature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n facts required here. There is also no dispute on the nature of the transaction involved. 24 . The issues raised by the appellant are questions of law which require, upon a comprehensive reading of the Bihar Electricity Act, a determination of whether tax can be levied on the supply of electricity by a power generator (which also manufactures sugar) supplying electricity to a distributor; and whether the first respondent has the legislative competence to levy duty on the sale of electricity to an intermediary distributor in view of the decision of this Court in State of AP (supra). The question of whether the appellant is liable to file returns under Sections 6B(1) and 5A of the Act is directly related to the issue of whether the sale of electricity by the appellant to BSEB falls under the charging provisions of Section 3(1). The questions raised by the appellant can be adjudicated without delving into any factual dispute. Thus, the present matter is amenable to the writ jurisdiction of the High Court. 25 . We are of the considered view that the High Court made an error in declining to entertain the writ petition and it would be appropriate to restore the proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such request was made within a period of one month, which is on 18.05.2020. 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 18.05.2020 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 24.03.2021 in WP(C) No.1644/2021, it was an agreed stand of the respondent GST Department that the application of the petitioner requesting for fixation of a special rate on the value addition to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate in respect of value addition to the manufactured goods had arisen only after the final judgment of the Supreme Court of India on 22.04.2020. In this regard, although the Court is conscious of the fact that usually question of limitation is a mixed question of facts and law, but in this case in hand, the issue of limitation would not require any fact to be considered save and except the fact that petitioner had filed six applications dated 02.03.2021 claiming fixation of special rates for the financial years from 2012-13 to 2017-18 after expiry of 30th September of each corresponding financial year. Thus, the only question which is required to be determining is to the effect that whether any cause of action had arisen before 22.04.2020 for the petitioner to apply for fixation of special rates of excise duty on goods manufactured by them. Another corollary question that would possibly arise is whether the period of time had stopped running during the Covid-19 Pandemic. In the considered opinion of this Court, the issue raised by the petitioner can easily be determined without examining any factual dispute. In this regard, the Court finds support from the judgment of Magadh Suga ..... X X X X Extracts X X X X X X X X Extracts X X X X
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