TMI Blog2022 (5) TMI 1361X X X X Extracts X X X X X X X X Extracts X X X X ..... the Secondary Higher Education Cess the value involved was ₹ 63 lakhs only and an objection was raised that the appeal is not maintainable in view of the National Litigation Policy dated 22.08.2019 which provides for not filing of appeals to High Court where the valuation is below ₹One Crore. The Division Bench observed that the preliminary objection has much substance though the appeal was disposed of otherwise - The department may not file appeal in isolation on the subject with lower valuation and wait for other similar to come and as and when sufficient number of appeals arises having a collective valuation of over ₹ One Crore, may proceed to file all of them in order to defeat the purpose of the circular. The cause of action in each appeal is separate. Therefore the monetary limit below which appeal shall not be filed referred to in the circular, is in context to a single appeal rather than the group of appeals. The amount involved in a group of appeals cannot be taken together for the purposes of the above Circular. The appellants have not brought on record any material to show that any special permission was granted by the Government of India or the Mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y misconceived for the reason that the statute does not provide for taking limitation for filing appeal from any other date except from the date of service/receipt of the copy of the impugned order - Sub-Section (2A) of Section 35 G contemplates for recording satisfaction regarding sufficient cause for not filing the appeal within the period of 180 days as prescribed. Therefore, primarily explanation has to be furnished for not filing the appeal within said 180 days from the receipt of the copy of the impugned order. The said period had expired in each case much before the decision was rendered in Unicorn Industries. There is no explanation on record why the appellant could not file the appeal within the said 180 days. Therefore, in view of the language used in Section 35G (2)(a) in the absence of any sufficient cause for not filing the appeal within that period, it would not be prudent and justifiable to condone the delay by this Court. Any explanation for the period subsequent to it is of no consequence. There are no merit in the submission that the appellants are entitled to get the delay in filing the appeals condoned. There is no sufficient ground to condone the delay and, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S.Johal, Sr. Advocate with Sh. Karman Singh Johal, Advocate (CEA Nos. 123, 124/2020, 131, 132, 133/2020, 136-143/2020) Sh. Pranav Kohli, Sr. Advocate with Sh. Arun Dev Singh, Advocate Smt. Seema Sheikher, Sr. Advocate with Sh. C.S.Gupta, Advocate and Sh. Sameer Bakshi, Advocate (CEA Nos.84-98/2021, 429/2021, 437/202, 451, 452, 453/202, 455, 456/2021, 458/2021) Sh. Sudhir Malhotra, Advocate (CEA Nos. 10/2020, 51-54/2020, 62-66/2020, 84/2020, 142/2020, 425, 426, 428, 440/2021 and 616-621/2021) Sh. Gautam Chugh, Advocate with Sh. J.A.Hamal, Advocate Ms. Supriya Arora, Advocate Ms. Kanika Malhotra, Advocate Sh. Amrinder Singh, Advocate Ms. Garima Gupta, Advocate (CEA No. 41/2020) Sh. Jatin Mahajan, Advocate Sh. Mohd Ashfaq Mir, Advocate JUDGMENT PANKAJ MITHAL, CJ: 1. About 700 appeals have been filed by the Commissioner, CGST and Central Excise Jammu and Kashmir, Jammu u/s 35 G of the Central Excise Act, 1944, (for short 'the Act' ) against the orders of different dates passed by the Customs Excise and Service Tax Appellate Tribunal ( for short 'CESTAT'), Chandigarh, setting aside the orders passed by the Commissioner (Appeals) and the Adjudicating Authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Revenue, Central Board of Indirect Taxes and Customs) New Delhi, dated 22.08.2019, the Government of India has fixed the monetary limit of ₹ One Crore below which appeal cannot be filed in the High Court. 11. The second preliminary objection is whether the appeal under Section 35G of the Act is maintainable before the High Court or it has to be filed directly in Supreme Court under Section 35L of the Act, as it pertains to question having relation to the rate of excise. 12. In dealing with all the above issues whether preliminary, technical or on merits it would be prudent to refer to the brief background where under the question of charging, levy, collection and refund of the Education Cess and Secondary Higher Education Cess arises. 13. The Government of India with the avowed object of encouraging commercial activity for setting up manufacturing units in industrially backward areas, came out with a policy of granting tax exemptions to the newly setup manufacturing units for a period of 10 years from the date of the commencement of business. One such Notification No. 56/2002-CE dated 14.11.2002 was issued in context with the State of J K, where under new industr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SRD Nutrients Pvt. Ltd. It was held that the Education Cess and the Secondary Higher Education Cess levied on the excise duty partakes the character of excise duty itself. The Government itself vide two circulars has taken a stand that where whole of excise duty is exempted, the Education Cess and the Secondary Higher Education Cess would not be payable. Therefore, when there is no excise duty payable, as it is exempted, there would not be any Education Cess or Secondary Higher Education Cess as they are to be calculated @ 2% and 1% respectively on the aggregate of excise duties. Accordingly, on the basis of the above judgment CESTAT by the impugned orders in appeals held that the assesses are entitled to refund of Education cess and Secondary Higher Education Cess. 18. The appellant made no effort to challenge any of the above orders passed by the CESTAT which have been impugned in the various appeals in time and rather took a conscious decision not to file appeals and proceeded to refund the Education cess and Secondary Higher Education Cess thus accepting the decision of the CESTAT. It was only after a judgment was rendered on 06.12.2019 by the Supreme Court in Unic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the appeal is not maintainable in view of the National Litigation Policy dated 22.08.2019 which provides for not filing of appeals to High Court where the valuation is below ₹One Crore. The Division Bench observed that the preliminary objection has much substance though the appeal was disposed of otherwise. 25. The above Circular dated 22.08.2019 is stated to have been issued in exercise of the powers conferred by Section 35R of the Act. It applies to relating to Central Excise and Service Tax. It clearly prescribes the monetary limits below which appeals are not to be filed before the CESTAT, High Courts and Supreme Court. In respect of High Court the monetary limit prescribed is ₹ One crore. The use of phrase 'Monetary Limits below which appeal shall not be filed refers to the amount of a single appeal and not to the collective amount of several appeals. If several appeals are taken collectively for applying the above circular it may lead to chances of misuse of power to file appeals. The department may not file appeal in isolation on the subject with lower valuation and wait for other similar to come and as and when sufficient number of appeals arises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discussion and, as such, cannot be regarded as substantial question of law. 31. In view of the above we are of the opinion that appellants were not justified in filing these appeals contrary to the mandate of the above circular which is binding upon them. Accordingly, these appeals are not maintainable. 32. Now we travel to the second aspect whether the appeals are maintainable before the High Court or are required to be filed directly before the Supreme Court u/s 35 L of the Act. 33. The appeal to the High Court lies from every order passed in appeal by the Appellate Tribunal if the High Court is satisfied that the case involves a substantial question of law provided it does not relate, among other things, to the determination of question having a relation to the rate of duty of excise or to the value of the goods for the purposes of the assessment. 34. In other words, if the appeal involves any question in relation to rate of excise duty or the value of the goods in context with the assessment, the appeal would not lie before the High Court but would lie to the Supreme Court u/s 35L of the Act which enables filing of the appeal in the Supreme Court if the order passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been reversed by the Supreme Court in Unicorn Industries, thus there was a mistake of the Court which was writ large. The appeals are for the rectification of the said mistake. Accordingly, in view of Section 17 of The Indian Limitation Act, 1963, appellant is entitled to get the delay condoned as the period for limitation in such cases would begin to run from the date on which the mistake had come to notice. 40. The respondents in each appeal have countered the above submission alleging that subsequent change of view by the Supreme Court will not give limitation for the filing of appeals. There is no explanation as to why the appeals could not be filed within 180 days of the service of the orders. Any other explanation would not suffice the purpose for condoning the delay. In fact appellant consciously decided not to file appeals and accepted the judgment as is reflected from the documents brought on record of some of the appeals in response to the delay condonation applications. The Act is a special and a self contained code which provides for the time for filing the appeal and even for condoning the delay, if any, for sufficient cause. Therefore Section 17 of the Limitati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be a straight jacket formula. It further observed that the expression 'sufficient cause' should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bonafide is imputable to a party. Therefore, acceptance of the explanation furnished should be the rule and refusal an exception, but in doing so the Courts should not lose sight of the fact that with the expiry of time valuable rights get accrued to the other party which should not be lightly defeated by condoning the delay in a routine manner. The Courts as such have to strike a balance vis- -vis the corresponding rights of the parties looking to the resultant effects of the order. 46. The essentials for purposes of condoning the delay as culled out from the above authorities are as under: i. The purpose of fixing limitation is to fix a life span for legal remedies and is founded on public policy. ii. The state and the private party must be accorded the same treatment. iii. When substantial justice and technical consideration are pitted against each other it is prudent to advance the cause of substantial justice. iv. The power of condoning the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngly, the decision does not come to the rescue of the appellants. 54. In another decision relied upon in context with the above, is that of Commissioner of Customs vs. Candid Enterprises, (2002) 9 SCC 764. In the aforesaid case, Customs Excise Gold (Control) Appellate Tribunal (CEGAT) declined to condone the delay on part of the revenue in filing the appeal. The court held that as the order impugned was based upon fraud which nullifies everything, therefore, the Tribunal ought to have condoned the delay. 55. In the case we are dealing with, there is no allegation of fraud but only of a mistake, if any, committed by the court. Therefore, the principle that fraud vitiates everything would not come into play. If that be so, the analogy of Section 17 of The Limitation Act would also not be applicable. 56. In connection with the issue of limitation Section 35G of the Act is relevant and material. It provides for the limitation of 180 days from the date on which the order impugned is received by the party for the purposes of filing the appeal. It further provides that the High Court may admit an appeal even after the expiry of the above 180 days on being satisfied that there w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expired in each case much before the decision was rendered in Unicorn Industries. There is no explanation on record why the appellant could not file the appeal within the said 180 days. Therefore, in view of the language used in Section 35G (2)(a) in the absence of any sufficient cause for not filing the appeal within that period, it would not be prudent and justifiable to condone the delay by this Court. Any explanation for the period subsequent to it is of no consequence. 62. In connection with above point the judgment and order of the Supreme Court in Ajit Singh Thakur Singh and others vs. State of Gujarat, AIR 1981 SC 733, clinches the issue and it clearly says that filing of an appeal only for the reason that the High Court had issued notice to the other side in some other cases is not a good cause. The appeal has to be filed within the limitation prescribed and the delay has to be explained for not filing the appeal within the said period. 63. The relevant paragraph of the aforesaid judgment reads as under; '6. At the outset, it is urged by learned counsel for the appellants that the High Court erred in condoning the delay in filing the appeal, and the appeal s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellants started filing the appeals after a subsequent decision in one of the cases. The court refused to condone the delay in filing the appeal holding that the judgment on the basis of which appeals are being filed was pronounced long after the expiry of period of limitation. 66. In view of the aforesaid facts and circumstances, we do not find any merit in the submission that the appellants are entitled to get the delay in filing the appeals condoned. There is no sufficient ground to condone the delay and, accordingly, delay condonation applications in all the appeals stand rejected. 67. Now coming to the merits of the case, whether the subsequent change in opinion by the Supreme Court on the interpretation of a particular provision of law, the appellants are entitled to reopen all the past cases which have been decided on the basis of the opinion of the Supreme Court that was prevailing as binding on the date of their decisions. 68. One of the objects and purpose of laying down the limitation for initiating proceedings or appeal is to fix a life span for legal remedies so that the litigation may come to a rest. Thus, where the limitation for taking any remedy agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of unconstitutality obtained by another person on any other ground; this is for the reason that so far he is concerned, the decision has become final and cannot be reopened on the basis of a decision of any other person s case... 72. The above principle so laid down by the Supreme Court clearly demonstrates that a decision which has become final and conclusive between the parties cannot be reopened on the basis of a subsequent decision taking a contrary view in the case of another person. 73. It may be profitable to refer to the case of State of Gujarat and others vs. ESSAR Oil Limited and another, (2012) 3 Supreme Court Cases 522, which holds that no refund can be ordered against a party, if that party has not been unjustly enriched or when it has acquired the benefit lawfully. Since the assessee have got the benefit of refund lawfully under the prevailing law, they cannot be directed to refund the same merely on the basis of change of opinion. Therefore, the appeals for the sole purpose to seek return of the amounts refunded in view of the decision of SRD Nutrients on the change of opinion subsequently are meaningless. 74. Applying the aforesaid principle in the cases ..... 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