Back
IN THE HIGH COURT OF GAUHATI (ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
SUDHANSHU DHULIA, MANASH RANJAN PATHAK, JJ.
The Union Of India And Ors – Appellants
Versus
M/s Keshari Industries A Partnership – Respondent
Writ Appeal No.162, 163, 170, 180, 186, 201 to 213, 219 to 227, 230 to 235, 242 to 246 of 2021
Decided on : 08-10-2021
Constitution of India, 1950 - Article 32, 370, 16(4), (4A) and (4B) - Central Excise Act, 1944 - Section 11A(1) - Central Excise Tariff Act, 1985 - Finance Act, 2004 - Section 91 to 93 - Customs Act, 1962 - Finance Act, 1994 - Chapter V - Assam Sales Tax Act, 1947 - Section 31 - Central Boards of Revenue Act, 1963 – Section 37B – Equality of opportunity in matters of public employment - Education Cess - Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded - Instructions to Central Excise Officers – Whether amount refunded to them can be recovered or not – Whether Matter having attained finality can be re-opened for reason that earlier law has been declared to be “per incuriam –
Finding of the Court:
submissions of counsels for assessees/petitioners that, under facts and circumstances of case, amount refunded to them cannot be recovered, as it was not refunded to them erroneously, but it was returned to them for reason that it was requirement of law; law as it stood at relevant time - Matter having attained finality cannot be re-opened for reason that earlier law has been declared to be “per incuriam –
Result: Appeals are dismissed
JUDGMENT :
Sudhanshu Dhulia, J.
All these writ appeals have been filed by the Union of India challenging the common judgment & order of the learned Single Judge dated 12.03.2021 passed in a bunch of writ petitions [WP(C) No.2929/2020 being the leading case], wherein the learned Single Judge has allowed the petitions and had quashed the show cause notices given to each of the petitioners by the Central Excise Department. These show cause notices were given to each of the petitioners calling upon them to return the amount refunded to them earlier deposited by each of the petitioners as Education Cess and Secondary and Higher Education Cess.
2. In order to get a better perspective of the matter, we need to state the background in which all these petitions were filed and also the dispute which led to the filing of these petitions.
3. In order to boost the industrial progress of the North East Region and for attracting investments in the industrial sector in the region, the Government of India had announced an “Industrial Policy Resolution” vide its Notification dated 24.12.1997 (hereinafter referred to as “IPR”). The Resolution contains a package of incentives and concessions to be given to such industries which will be established in the North East Region of the country, which includes Assam, Arunachal Pradesh, Nagaland, Mizoram, Manipur, Tripura, Meghalaya and Sikkim.
4. One of the benefits of this policy was to grant tax holiday for a certain period to those who set up an industry in the North East. Under this Scheme or Policy as far as the Central Excise was concerned, the Union of India had issued two Notifications, i.e. Notification No.32/99-CE and No.33/99-CE, both of which are dated 08.07.1999. These Notifications granted exemption in respect of all excisable goods cleared from a unit located in the growth or Integrated Infrastructure Development Centre or Export Promotion Industrial Park or Industrial Estates or Industrial area or Commercial Estate, as the case may be, in the North East. The exemption was applicable to all new industrial units which had commenced their commercial production on or after 24.12.1997, or to an industrial unit which had “substantially extended” its production after the said date, i.e. 24.12.1997. In continuation of this policy the Government had announced in the year 2007 that there will be a 100% excise duty exemption on finished products made in the North Eastern Region. In terms of that promise, the Government of India vide Notification No.20/2007 dated 01.04.2007 had declared the North East Industrial and Investment Promotion Policy (NEIIPP), 2007. This conferred benefits in terms of the promise made earlier.
5. The Notification dated 01.04.2007 was issued by the Government of India through its Ministry of Commerce & Industry, which granted a tax holiday to industries in the North-East in the shape of income tax as well as excise duty, for a period of ten years. Certain industries which were in the “Negative list” were not covered under this Notification. For any purposes, since we are only concerned with the exemption of excise duty, the relevant portion of the Notification dated 01.04.2007, reads as under:-
Sub: North East Industrial and Investment Promotion Policy (NEIIPP), 2007
The Government has approved a package of fiscal incentives and other concessions for the North East Region namely the “North East Industrial and Investment Promotion Policy (NEIIPP), 2007”, effective from 1.4.2007, which, inter-alia, envisages the following :
(i) *****
(ii) *****
(iii) *****
(iv) *****
(v) Excise Duty Exemption:
100% Excise Duty exemption will be continued, on finished products made in the North Eastern Region, as was available under NEIP, 1997. However, in cases, where the CENVAT paid on the raw materials and intermediate products going into production of finished products (other than the products which are otherwise exempt or subject to nil rate of duty) is higher than the excise duties pa
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
