Topcem India vs Union of India - 2021 Supreme(Gau) 428

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Gau) 428

IN THE HIGH COURT OF GAUHATI
Soumitra Saikia, J.
Topcem India and Ors.- Appellants
Vs.
Union of India and Ors.- Respondent
WP(C)/2918/2020,WP(C)/3155/2020,WP(C)/1780/2020,WP(C)/1366/2020,WP(C)/2920/2020,WP(C)/3763/2020,WP(C)/2929/2020,WP(C)/2940/2020,WP(C)/3113/2020,WP(C)/3298/2020,WP(C)/3386/2020,WP(C)/3835/2020,WP(C)/2935/2020,WP(C)/3156/2020,WP(C)/3372/2020,WP(C)/3464/2020,WP(C)/4824/2020,WP(C)/3762/2020,WP(C)/4053/2020,WP(C)/4194/2020,WP(C)/3610/2020,WP(C)/3176/2020,WP(C)/4493/2020,WP(C)/2951/2020,WP(C)/3596/2020,WP(C)/3177/2020,WP(C)/4947/2020,WP(C)/3166/2020,WP(C)/4721/2020,WP(C)/4035/2020,WP(C)/4031/2020,WP(C)/4046/2020,WP(C)/3087/2020,WP(C)/3810/2020,WP(C)/3049/2020,WP(C)/5800/2020,WP(C)/2916/2020,WP(C)/2899/2020,WP(C)/3237/2020,WP(C)/2872/2020,WP(C)/2926/2020 and P(C)/2947/2020
Decided On : 12-03-2021

Advocate Appeared:
For the Appellant :A. Saraf,Sr. Adv.,R.K. Choudhury,M.L. Gope,D. Saraf,P. Baruah,M. Devi,B. Chakraborty,Advocates,P. Das,A. Das,Adv.,G. Sahewalla,Sr. Adv.,M. Sahewalla,N. Hawelia and N. Gogoi Advs.
For the Respondents: SC,Asstt. S.G.I.,S.C. Keyal,SC,P. Das,G. Hazarika,Advs.,P. Parasar and C. Sarma Baruah,CGCs

Headnote:
Constitution of india,1950 - Articles 226, 141 , 137 , 32 and 143 - Central Excise Act, 1944 - Sections 11A(i) and 11AA - Finance (No. 2) Act, 2004 - Sections 91 to 93, 11A(i) , 35 and 263 - Sought to be recovered from petitioners by way of impugned show cause notice - Industrial Policy Resolution - Integrated Infrastructure Development Centre - Central Excise Authority directing petitioner to show cause as to why amount of Education Cess and Secondary and Higher Education Cess, which were refunded to petitioners should not be recovered under Provisions of Section 11A(i) of the Central Excise Act, 1944 - Enhancing the industrial progress in the North-East Region and for attracting investees with a view to foster industrial growth and industrial activities in North-East region, the Govt - IPR amongst others declared all industrial activities in growth centers; integrated infrastructural development centers, export promotion and industrial parks, export processing zone, industrial estates and industrial areas as completely tax free zones for a period of 10 (ten) years - It was announced and promised by Government of India that all industrial activities for such areas would be free from, inter alia, income tax - Ministry of Finance of Government of India would be moved to amend existing rules/notifications for giving effect to the decisions embodied in the Industrial Policy Resolution - Envisages other different incentives and concessions like Capital Investment Subsidy assistance in obtaining Term Loan and Working Capital and Interest Subsidy – Held, Court in writ applications filed by some of petitioners. As held by the Apex Court declaration of judgment to be rendered "per incuriam" by latter judgment will not upset binding effect of the judgment between the litigating parties. As the department sanctioned refunds in terms of such orders passed in judicial proceedings between assessees and department, the same having attained finality cannot be reopened except by way of Department taking recourse to available judicial remedies - Power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of Constitution - This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for enforcement of any of Fundamental Rights contained in Part III of Constitution but also for "any other purpose - High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available - High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies - Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or vires of an Act is challenged - Show cause notices issued are required to be held to have been issued without any jurisdiction and by wrong interpretation of the powers under Section 11A read with Section 11AA - Writ petitions are allowed

JUDGMENT :

Soumitra Saikia, J.

1. Heard Dr. A. Saraf, learned senior counsel assisted by Mr. P. Das, learned counsel for the petitioner in WP(C) No. 2918/2020, WP(C) No. 1366/2020, WP(C) No. 2916/2020, WP(C) No. 2920/2020, WP(C) No. 2926/2020, WP(C) No. 2940/2020, WP(C) No. 3155/2020, WP(C) No. 3156/2020, WP(C) No. 3237/2020, WP(C) No. 3298/2020, WP(C) No. 3372/2020, WP(C) No. 3464/2020, WP(C) No. 3763/2020, WP(C) No. 4031/2020, WP(C) No. 4035/2020, WP(C) No. 4046/2020 and WP(C) No. 4194/2020.

2. Mr. R.K. Choudhury, learned counsel assisted by Mr. A. Das, learned counsel appears for the petitioners in WP(C) No. 1780/2020, WP(C) No. 2899/2020 & WP(C) No. 4824/2020.

3. Mr. G. Sahewalla, learned senior counsel assisted by Mr. M. Sahewalla, learned counsel appears for the petitioners in WP(C) No. 3087/2020, WP(C) No. 3596/2020 WP(C) No. 3610/2020, WP(C) No. 3810/2020, WP(C) No. 4053/2020, WP(C) No. 4493/2020 and WP(C) No. 4721/2020.

4. Mr. D. Saraf, learned counsel appears for petitioners in WP(C) No. 3113/2020 and WP(C) No. 3835/2020.

5. Ms. N. Hawelia and Ms. N. Gogoi, learned counsels appears for the petitioners in WP(C) No. 2872/2020, WP(C) No. 2929/2020, WP(C) No. 2935/2020, WP(C) No. 2947/2020, WP(C) No. 2951/2020, WP(C) No. 3049/2020, WP(C) No. 3166/2020, WP(C) No. 3176/2020, WP(C) No. 3177/2020, WP(C) No. 3386/2020, WP(C) No. 3762/2020 and WP(C) No. 4947/2020.

6. Mr. B. Chakraborty, learned counsel appears for the petitioners in WP(C) No. 5800/2020.

7. Also heard Mr. S.C. Keyal, learned standing counsel assisted by Ms. P. Das, and Ms. G. Hazarika, learned counsels for the respondent, Central Excise and GST Department and Mr. P. Parasar and Mr. C. Sarma Baruah, learned CGC appearing for the Union of India.

8. All these writ petitions raise common questions of law and, therefore, the same are taken together for hearing and disposal. The matters were heard on several dates and pursuant thereto the same are taken up for disposal by this common Judgment and Order. Dr. A. Saraf, learned senior counsel has lead the arguments for the petitioners. All other learned counsels for the petitioners have adopted the arguments of Dr. Saraf. The brief facts necessary for adjudicating the issues raised in the present proceedings are narrated as under:-

9. In all these writ petitions, the petitioners have challenged the Demand-cum-show cause notices issued by the Central Excise Authority directing the petitioner to show cause as to why the amount of Education Cess and Secondary and Higher Education Cess, which were refunded to the petitioners should not be recovered under the Provisions of Section 11A(i) of the Central Excise Act, 1944, (hereinafter known as the "Act") and further as to why interest should not be charged and realized in terms of Section 11AA of the Act. The show cause notices were issued in view of the Judgment and Order of the Apex Court in M/S. Unicorn Industries Vs. Union of India reported in (2020) 3 SCC 492 whereby an earlier Judgment of the Apex Court, namely, SRD Nutrients Pvt. Ltd. Vs. Commissioner of Central Excise, Guwahati reported in (2018) 1 SCC 105 have been declared to be per incuriam. According to the Department, the refunds sanctioned to the petitioners earlier were made pursuant to the Judgment of the Apex Court in SRD Nutrients Pvt. Ltd. (supra) and the said Judgment having been held to be "per incuriam" by the Apex Court in the recent Judgment of M/S. Unicorn Industries Vs. Union of India; the refunds earlier granted to the petitioners on the strength of the Judgment in M/S. SRD Nutrients (supra) have become "erroneous refunds" and, therefore, the same are sought to be recovered from the petitioners by way of impugned show cause notice.

10. For enhancing the industrial progress in the North-East Region and for attracting the investees with a view to foster industrial growth and industrial activities in the Nor

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2021 Supreme(Gau) 428

Cases Referred (30)