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TMI Blog2022 (5) TMI 1361X X X X Extracts X X X X X X X X Extracts X X X X ..... inder 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 Authority and directing for the refund of the Education Cess and Secondary & Higher Education Cess to the assessee in view of the decision of the Apex Court in M/s SRD Nutrients Pvt. Ltd. Vs. Commissioner of Central Excise, Guwahati, 2017 (335) ELT 481 (SC) . 2. All appeals except two, i.e., Central Excise Appeal Nos. 09 and 11 of 2020 are reported to be barred by time ranging from 200 to 1100 days. 3. An objection has been raised that not a single appeal is within time and that even the aforesaid two appeals are barred by limitation, if the limitation is properly calculated from the date of the service of the order upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing, 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 industrial units were entitled to hundred percent excise duty exemption for a period of 10 years from the date of commencement of production. It provided that the assessee would be entitled to refund of duty paid other than duty paid by way of utilization of CENVAT credit. The methodology adopted and prescribed in the notification in granting the exemption from duty of excise was that the manufacturer was initially supposed to pay the excise duty leviable on the excisable goods and thereafter claim refund thereof provided he first utilizes CENVAT credit available to him on the last date of the month under consideration for payment of duty and pays only the bala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Unicorn Industries taking a contrary view on the subject that the appellant decided to file appeals that too in the first instance before the Supreme Court under Section 35L of the Act but subsequently before the High Court. 19. It is in the above backdrop that we have been confronted with these appeals. 20. The first preliminary objection of the respondents is that the appellants cannot prefer these appeals as the Ministry of Finance (Department of Revenue), Central Board of Indirect Taxes and Custom vide Circular dated 22.08.2019 has specifically provided that the Department should not file any appeal before the High Court in a matter where under the amount involv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 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 having a collective valuation of over Rs. 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. 26. It is trite to mention here that the Circulars of the Government of India are binding upon its departments therefore when the above circular clearly provides that no appeal shall be filed before the High Court if the monetary limit is below Rs. One cror ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 passed by the authority below relates to the determination of any question in relation to the rate of duty of excise or to the value of goods for the purposes of the assessment. 35. On the plain reading and the understanding of both the above provisions we need not dwell much on authorities which have been cited by both the sides on the above issue in as much as the issue on merit is regarding liability of the assessee to return the Education Cess and Secondary & Higher Education Cess which stands already determined. The said issue has no concern with the assessment or determination of any question in relation to rate of excise duty or value of goods. No authority has been cited to persuade us to hold that the liability to return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uffice 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 Limitation Act would not be applicable. Its application is restricted to cases where the limitation is prescribed under the Limitation Act itself. 41. It would be better to discuss some of the case law on the point of limitation so as to bring out the factors which would be necessary for deciding applications for condoning the delay in filing the appeals. 42. In Collector Land Acquisition Anantnag and another vs. Mst. Katiji and others, (1987) 2 SCC 107, the Supreme Court observed that in the matter of condonation of delay as no one stands benefited in lodging an appeal late and when substantial justice and technical considerations are pitted against each other, the cause of substantial justices deserves to be preferred, therefore, a liberal ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 delay is a discretionary power and normally a liberal approach should be adopted; and v. When the delay is due to fraud and unusual conduct of the pleaders, the court should tilt in favour of the government in condoning the delay. 47. We are conscious of the above position of law in dealing with the applications for condoning the delay but would prefer to refer to some other precedents relied upon by the appellants. 48. Sh. Jagpaul Singh, learned counsel for the appellants has placed stiff reliance upon a decision of the Supreme Court in Mahabir Kishore and others vs. State of Madhya Pradesh, (1989) 4 SCC 1. 49. In the aforesaid case, the government of Madhya Pradesh had charged 7 ½ % mahua and fuel cess on the auction money which was subseque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 was sufficient cause for not filing the appeal within the above period. 57. It would be beneficial to reproduce the relevant provisions of Section 35G with regard to limitation and accepting appeals after the expiry of limitation as aforesaid: "35G (2) (a) - Filed within one hundred and eighty days from the date on which the order appealed against is received by the [Principal Commissioner of Central Excise or Commissioner of Central Excise] or the other party; xxxxx xxxxxx xxxxx (2A) The High Court may admit an appeal after the expiry of the period of one hundred and eighty days referred to in clause (a) of sub-section (2), if it is satisfied that there was sufficient cause for not filing the same within that period." 58. A reading of Section 35G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 should have been dismissed as barred by limitation. We have examined the facts carefully. It appears that initially the State Government took a decision not to file an appeal and it allowed the period of limitation to lapse. Subsequently, on certain observations made by the High Court while considering a revision petition by Bhulabhai that it was a fit case where the State Government should file an appeal and on notice being issued by the High Court to the State Government in the matter, the appeal was filed. It was filed three months after limitation had expired. A faint attempt was made to show that when the initial decision was taken not to file an appeal all the papers had not been considered by the department concerned, but we are not impressed by that allegation. The truth appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 against any particular order has expired long back, ordinarily said case is not liable to be reopened merely for the reason that subsequently the view of the court on the aspect decided by it has changed or that a different opinion has been expressed by the court in some other case. If such an action is permitted, there would be no finality to any decision. 69. In nine Judges Bench in Mafatlal Industries Limited vs. Union of India, 1997 (89) E.L.T. 247(S.C.):MANU/SC/1203/1997: (1997)5SCC536 in a situation where a manufacturer paid excise duty and failed before the adjudicating or the appellate authority and then kept quiet allowing the orders to become final against him, it was held he cannot claim refund of duty on the basis of subsequent decision of the court taking a contrary view. The relevant p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 at hand, since the assessee has been held entitled to the refund of the Educational cess and Secondary & Higher Educational cess on the basis of a judgment and order of the Supreme Court in case SRD Nutrients which was in vogue at the relevant time, the appellants are not entitled to make recovery of the said refunded amount on the basis of the subsequent decision of the Supreme Court rendered in the case of Unicorn Industries. If such an action is permitted, it will open a Pandora box and the lis between the parties which had attained finality will never come to an end. This would be against the public policy which envisages providing quietus to litigation at some stage. 75. In view of the facts and circumstances of the case, we find no merit in these appeals and the same are dismissed, first for the reason, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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