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TMI Blog2024 (9) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... ications dated 27.12.2022 filed by the petitioner for fixation of special rate of actual value addition for the financial years 2011-2012 and 2012-13 have been rejected being barred by limitation. 2. The short grievance projected by the petitioner is that in terms of Notification No. 56/2002-CE dated 14.11.2002, it was entitled to 100% refund of the excise duty on the goods manufactured by it. However, vide notification No. 19/2008-CE dated 27.03.2008, the exemption notification issued in the year 2002 was amended and refund of excise duty was restricted to the duty payable on value addition undertaken in the manufacture of the goods. A table was introduced in the original notification containing a rate of value addition for different goods. Furthermore, in terms of clause 2.1 of the Notification dated 27.03.2008, the manufacturer was given an option not to avail the rates specified in the table and apply to the Commissioner for fixation of a special rate representing the actual value addition in respect of goods manufactured and cleared under the Notification. The notification dated 10.06.2008 clearly provided that such an application seeking fixation of special rates must be fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance of notification dated 27.03.2008, the area-based exemptions of excise duty in favour of industrial units established in North-Eastern States including State of Jammu and Kashmir were governed by Notification No. 56/2002-CE dated 14.11.2002. As per the said notification, the petitioner-unit was entitled to 100% refund of the excise duty paid on manufacturing and clearing of its excisable goods. It is equally true that, in terms of excise notification No. 19/2008 dated 27.3.2008 read with Notification No. 34/2008-CE dated 10.06.2008 the exemptions were curtailed and restricted only to the extent of value addition. This notification was immediately challenged before this Court and, therefore, remained eclipsed till the matter was finally decided by the Supreme Court on 22.04.2020 in Reckitt Benckiser's case (supra). Rightly, as is contended by the petitioner, it could not have applied for fixation of special rates as provided under the Excise Notification of 2008 which was subject matter of challenge in various writ petitions and had been stayed by a Single Bench of this Court. It, therefore, made applications for refund under the excise notification of 2002, the details whereof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the application if filed by 30.11.2022. The petitioner, however, filed applications seeking fixation of special rates on 27.12.2022. Obviously, the application was delayed by 27 days. It is true that the Commissioner could not have condoned the delay of these 27 days for the reason that the notification would give him only power to condone the delay up to a period of 30 days. On this score, the Commissioner could have been justified to dismiss the application. The Commissioner has not gone into that aspect of the matter and has even brushed aside the contention of the petitioner that it was entitled to exclude the period between 15.03.2020 to 28.02.2022 and has held the applications filed by the petitioner barred by inordinate delay and laches. Respondent No. 2 has found the applications delayed by two years and eight months reckoned from the date of decision of the Supreme Court in the case of VVF Ltd.'s case (supra). 8. So far as the conclusion drawn by the Commissioner that the applications were delayed by two years and eight months is concerned, the same is factually incorrect. The Commissioner has not taken note of the fact that the period between 15.03.2020 to 28.02.2022 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the petitioner, with a view to taking benefit of exemptions under the amending notifications of 2008, should have made applications seeking fixation of special rates as was provided in the amending notifications immediately after the judgment of Supreme Court in VVF Ltd's case (supra). For two years, it could not do so because of pandemic and up to September 2022, he was entitled to apply for as provided under the notifications itself. There is also a provision for condonation of delay in the notifications for a period of one month. As held above, and is reiterated here that the applications filed by the petitioner were delayed by 27 days only. The applications dated 27.12.2022 filed by the petitioner in the given circumstances can be said to be the applications filed in continuation with the applications for refund filed in the year 2012 and 2013. The refund applications were already with respondent No. 2 and the two applications which were filed on 27.12.2022 were only for seeking a different mode of computing/determining the excise duty refund payable to the petitioner. Viewed thus, it cannot be said that the applications filed by the petitioner were beyond time. 12. We have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the instant case, the Commissioner has failed to take note of a clear directive of the Supreme Court to exclude the period of limitation between 15.03.2020 to 28.02.2022 while computing the limitation provided for filing of any appeal or application before any Court or authority under the statute. The Commissioner also failed to take note of the fact that the petitioner had filed refund appellations in the year 2011 and 2012 itself and made the applications on 27.12.2022 only seeking determination of refund of excise duty in terms of excise notifications of 2008 which were upheld by the Supreme Court in VVF Ltd.'s case (supra) on 22.04.2020 only. As a result of this total non-application of mind on the part of the Commissioner, there was a serious miscarriage of justice. That apart, this Court had already decided two petitions on the similar grounds and, therefore, we are of the considered view that relegating the petitioner to alternative remedy would be subjecting the petitioner to uncalled for discrimination. The petitioner needs to be treated at par with the petitioners of WP (C)s No. 1844/2021 and 2520/2022 (supra). 14. In the premises, this petition is allowed. The impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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