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IN THE HIGH COURT OF GAUHATI
Soumitra Saikia, J.
Gemson Melt Pvt. Ltd.- Appellants
Vs.
The Union of India and Ors.- Respondent
WP(C)/2160, 2162, 2810, 2161, 2101 and 2189/2020
Decided On : 26-03-2021
Central Excise Tariff Act, 1985 - Section 35-E (1) and (2) - Whether an order passed by an authority under Central Excise Act and Rules framed thereunder, namely, respondent No. 3 herein, whereby refunds were granted 2 earlier to petitioner/assessee and which order was upheld by Commissioner (Appeals) coupled with fact that further appeals preferred by Department/Revenue was dismissed on technical ground, namely, same being below prescribed minority limit in terms of Central Board of Excise and Customs (CBEC) instruction can be re-visited collaterally by another authority – Held Respondent No. 3 granting refunds for months - While, deciding appeals filed by Department, Commissioner(Appeals) narrated in details, factual matrix involved and referred to various documents and letters by which it concurred with findings of Assistant Commissioner while granting refunds for period and claims of petitioner/assessee regarding substantial expansion at least 25% of its capacity and investments in fixed assets machinery and consequently upheld findings of respondent No. 3 as well as agreed to claims of petitioner that it satisfies requirements stipulated under Notification to enable petitioner to claim for findings of Central Excise Duty paid - Relevant paragraphs regarding findings of Commissioner (Appeals) in respect of fulfillment by petitioner of requirements stipulated under Notification No are extracted as under - Writ petitions allowed
JUDGMENT :
Soumitra Saikia, J.
1. Heard Mr. D. Saraf, learned counsel for the petitioner. Also heard Mr. S.C. Keyal, learned ASGI for the respondents.
2. All these Writ Petitions have been filed by the petitioner challenging the rejection of the Central Excise Duty refund claims of the petitioner as well as the demand of recovery of Central Excise Duty refunds along with interest and penalty imposed.
WP(C) No. 2189/2020 filed by the petitioner challenging the show cause notice dated 08.11.2010 and the impugned order dated 27.01.2020 passed by the respondent No. 3 rejecting the claim for duty paid for the period of September 2009, October 2009, November 2009, December 2009, January 2010, February 2010, March 2010, May 2010, June 2010, July 2010, August 2010 amounting to Rs. 26,42,418/-.
WP(C) No. 2810/2020 has been filed by the petitioner challenging the non-processing of its refunds of claims for the period of September 2011 to May 2012 amounting to Rs. 9,78,552/-.
WP(C) No. 2101/2020 filed by the petitioner challenging the show cause notice dated 03.06.2011 and the impugned order dated 18.12.2019 passed by the respondent No. 3 amounting to Rs. 21,71,123/- confirming the demand of excise duty along with interest and penalty.
WP(C) No. 2160/2020 filed by the petitioner challenging the show cause notice dated 05.05.2010 and the impugned order dated 18.12.2019 passed by the respondent No. 3 confirming the demand of duty along with interest and penalty amounting to Rs. 2,96,512/-.
WP(C) No. 2161/2020 filed by the petitioner challenging the show cause notice dated 27.04.2012 and the impugned order dated 18.12.2019 passed by the respondent No. 3 confirming the demand/recovery of Rs. 10,80,600/- along with interest and penalty.
3. The essential facts for the purpose of the determination of the lis between the parties are that the petitioner is a Company registered Office at NH-37, Borsojai, Beltola, Guwahati, 781028 and is represented by its authorized Director in the present proceedings. The petitioner claims to be holding Central Excise Registration No. AAACG5067G-XM-002 and is engaged in the manufacturing of HSD Bar and Rods, TMT Bar and Rods, End cuttings, M.S. Rolls etc all falling under Chapter-72 of the Central Excise Tariff Act, 1985 and is eligible for claiming exemptions under Notification No. 20/2007 CE : dated 25.04.2007. The petitioner claims that its manufacturing units were set up before first day of April, 2007 and that it had undergone expansion by way of increase by not less than 25% in fixed capital investments in plant and machinery for the purpose of expansion. It is stated by the petitioner that its capital investment in the unit before expansion was Rs. 38,01,837/- and by way of increased investment towards purchasing of machinery it went up to Rs. 65,58,577/-. The expansion of the unit commenced in 2005 and was completed on 06.06.2007.
4. The petitioner who considered itself eligible for the benefits in terms of Notification No. 20/2007 CE : dated 25.04.2007 submitted refund claims in respect of duty paid. The Office of the respondent No. 3, Assistant Commissioner, Central Excise and Service Tax (as it was earlier known) issued three refund orders in the months of May, 2009, June, 2009 and July, 2009. The amounts refunded were Rs. 42,019/- for the month of May, 2009, Rs. 1,83,757/- for the months of June, 2009 and Rs. 31,344/- for the month of July, 2009. Against these refund orders issued by respondent No. 3, the respondent No. 2, namely, the Commissioner, Central Excise and Service Tax (as it was earlier known) d
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