IMPORTANT POINTS
Concept of natural justice cannot be read into section 153 of the Finance Act, 2003.
High Court under Article 226 of the Constitution should not enter into factual disputes.

JUDGMENT

Dipak Misra, J.

The present appeals, by special leave, have been preferred against the judgment and order dated 24th June, 2009 passed by the Division Bench of the High Court of Gauhati in Writ Appeal No. 435 of 2006 and other connected appeals whereby it has affirmed the common judgment and order dated 21.09.2006 passed by the learned Single Judge in a batch of writ petitions. For the sake of clarity and convenience we shall advert to the facts in Civil Appeal No. 3380 of 2010 and at the relevant time we shall refer to quantum involved in other appeals.

2. The facts, in a nutshell, are that with a view to provide necessary impetus to the development of industries in the north-eastern region a new Industrial Policy Resolution was notified by the Government of India on 24.12.1997. In pursuance of the said policy, a Notification was issued on 8.7.1999 and thereafter further Notifications were issued on 29.06.2001 and 23.12.2002. Pursuant to the said Notifications, certain benefits were availed of by the assessees. At that juncture, The Finance Act, 2003 (for brevity “the Act”) was brought into force and by virtue of Section 153 of the Act certain Notifications were amended with retrospective effect from 08.07.1999, i.e. the date of original Notification which we have mentioned hereinabove.

3. After the amendment came into force, the Assistant Commissioner, Central Excise, Jorhat referred to the amendment and the notifications and eventually passed the

following order on 3.6.2003:-

“In consideration of the above the entire refund amount sanctioned with effect from 8.7.99 is required to be reviewed in terms of the provision of the Eighth Schedule of the Finance Act, 2003 which on being reassessed, it appears that an amount of Rs.2.20,18.124.00 is required to be recovered from the said unit being the refund granted earlier which have become not eligible by virtue of the Clause 145 of the Finance Bill, 2003. Details of duty paid month wise, refund sanctioned and amount required to be realized are furnished in Annexure-1 to the Order enclosed.

Now in terms of the provision of Finance Act, 2003 M/s. Hindustan Coca Cola Beverages Pvt. Ltd., P.O. R.R.L., Jorhat is hereby required to make payment of the said amount of Rs.2,20,18,124.00 within a period of 30 (thirty) days with effect from 13th May, 2003. Failure to comply with this Order with the specified date an interest @ 15% p.a. shall be payable from the date immediately after the expiry of the said period of thirty days till the payment is made.”

4. Being aggrieved by the aforesaid order, the appellant preferred a writ petition before the High Court. The validity of Notification No. 65/03 dated 06.08.2003 and certain other notifications including the original notification No. 33/99 dated 3.7.99 were called in question. Before the High Court, the constitutional validity of the amendment of the Finance Act was also called in question. In the course of hearing, the challenge to the validity was abandoned. It was contended in the writ petition that without affording an opportunity of hearing to the appellant and without issuance of the notice, the Assistant Commissioner had passed an order of recovery which was absolutely impermissible.

5. The High Court did not address to the retrospective application of the provision as the assail to the same was abandoned. It also did not address to the impact of non-issuance of notice prior to passing an order of recovery. It adverted to the merits of the case, that is, whether the recovery could have been directed by the Assistant Commissioner or not and repelling the proponements advanced by the assessee accepted the stand of the revenue.

6. Mr. S.K. Bagaria, learned senior counsel appearing for the appellant very fairly stated that the assessee had correctly abandoned the challenge pertaining to the constitutional validity of the pr