Point of Law: Excise Tariff - Manufacture of excisable products - Fixation of a special rate - In earlier order it was an agreed stand of respondent GST Department that application of petitioner requesting for fixation of a special rate on value addition to manufactured goods would be considered and possibility that application would be rejected on ground of it having not been submitted prior to 30th September of that given financial year was not raised when said order was passed by Court.

JUDGMENT :

Heard Mr. Laxmi Kumaran Varadachari, learned senior counsel for the petitioner, Mr. SC Keyal, learned counsel for the respondents in the GST Department and Mr. S Borthakur, learned CGC for the respondent No.1.

2. The petitioner M/s Jyothy Labs Ltd (MAXO Unit) (formally known as Jyothy Laboratories Limited) is a public limited company registered with the Central Excise Department bearing registration No. AAACJ3213BXMO12 and is engaged in the manufacture of certain excisable products namely mosquito coils falling under HSN 38 08 9191 of the First Schedule to the Central Excise Tariff Act, 1985. The petitioner with the intention to have the benefits under the Northeastern Industrial Policy of 24.12.1997 had established a manufacturing unit within the Northeastern Region. As per the Northeastern Industrial Policy, the petitioner was earlier entitled to an exemption to excise duty to certain extent.

3. By the notifications No.17/2008-CE dated 27.03.2008 and No.31/2008-CE dated 10.06.2008, certain modification was brought in by the respondent authorities to the exemption that was made available to the petitioner under the North Eastern Industrial Policy. The validity and vires of the notifications by which such modification was brought in regarding the entitlement of exemption of excise duties was assailed by the petitioner and some other similarly aggrieved manufacturers by way of WP(C) No.1789/2008 and other writ petitions.

4. One of the ground for assailing the notifications was based on the doctrine of promissory estoppels. WP(C) No.1789/2008 was given a final consideration by the judgment dated 24.06.2009, by which the notifications impugned dated 27.03.2008 and 10.06.2008 were held to be not sustainable in law and were accordingly set aside and quashed. The intra-Court appeal that was carried against the judgment of the learned Single Judge by the respondent authorities which was numbered as WA No. 243/2009, resulted in the judgment dated 20.11.2014, by which the judgment rendered by the learned Single Judge was upheld, meaning thereby that the interference with the notifications impugned was sustained. The respondents in the Union of India carried an appeal before the Supreme Court against the judgment in the writ appeal resulting in SLP No.11878/2015. In the said proceeding, the Supreme Court had passed an interim order dated 07.12.2015, wherein the following as extracted was provided:-

“Pending further orders, we direct that subject to the petitioners releasing 50% of the amount due to the respondent in terms of the impugned judgment on the respondents’ furnishing solvent surety to the satisfaction of the jurisdictional commissioner, the operation of the impugned judgment shall remain stayed.”

5. In terms of the order dated 07.12.2015 of the Supreme Court, the respondent GST Department was required to release 50% of the amount that was due to the assessee during the pendency of the appeal before the Supreme Court. The said interim order was passed in an appeal by the Union of India against an assessee namely M/s Kamakhya Cosmetics and Pharmaceuticals and others. The Division Bench of this Court in Raj Coke Industries vs. Union of India, reported in 2017 (349) ELT 120 (GAU), by a judgment dated 01.12.2016 had provided that the benefit of being paid the 50% of the amount involved as provided by the Supreme Court in its order dated 07.12.2015 would be applicable to all such similarly situated assesses.

6. After the judgment of the Division Bench in Raj Coke Industries (supra), an amount of Rs.8.05 crores and Rs.1.36 crores was refunded to the petitioner on 19.11.2018. In the meantime, the Supreme Court had given its final consideration to the appeal preferred by the respondent Union of India in the GST Department and by the order dated 22.04.2020 in Civil Appeal No.2256-2263 of 2020 arising out of SLP(C) No.28194-28201-2010 and other similar appeals had interfered with the judgment of the Division Bench dated 20.11.2014 in