IMPORTANT POINT
Estoppel of the Department from raising the objection of limitation based on their previous submission.

JUDGMENT

Sanjib Banerjee, CJ. - The present petition falls within a narrow compass. Notwithstanding the several grounds urged on behalf of the respondent Goods and Services Tax Authorities, the real answer to the issue raised depends on the interpretation of a previous order of this Court of February 26, 2021 between the same parties.

2. Prior to the issuance of notification No.30/2008-C.E. of June 10, 2008, manufacturers of goods and service providers in the North-East were governed by notification No.20/2007-C.E. In effect, the previous notification exempted the Central excise component for the manufacturers of goods and service providers in the North-East region. This total exemption regime was altered by the notification of June 10, 2008 that, in effect, exempted the value added component and not the entirety of the Central excise component.

3. The relevant notification described the goods in one of the columns and provided a flat rate of deemed value addition in respect of such goods. However, the relevant notification also permitted a manufacturer to not avail of the rate specified in the table set out in the notification and to apply to the jurisdictional Commissioner for fixation of a special rate representing the actual value addition in respect of any goods manufactured and cleared under the notification, if the manufacturer found that the actual value addition in the production or manufacture of the said goods was at least 115 per cent of the rate specified in the table. For such purpose, the notification stipulated that the manufacturer had to make an application in writing to the jurisdictional Commissioner not later than September, 30 of the financial year for determination of such special rate, stating all the relevant facts including the proportion in which the material or components were used in the production or manufacture of the relevant goods. A proviso to the relevant paragraph in the notification permitted the jurisdictional Commissioner to extend the time for making the application by a period of 30 days.

4. The notification of June 10, 2008 was challenged in various High Courts and, by an order dated November 20, 2014, the High Court of Gauhati set aside the same. The relevant order of November 20, 2014 was carried by way of a petition for special leave to appeal to the Supreme Court. On December 7, 2015, on an interim application in SLP (C) No.11878/2015, the Supreme Court stayed the operation of the impugned judgment and made some order pertaining to the refund to be made by the Department to the petitioner before the Supreme Court. What is of relevance in the order is that the operation of the judgment of the High Court of Gauhati of November 20, 2014 invalidating the notification of June 10, 2008 was stayed.

5. The respondents contend that as a consequence of such stay granted by the Supreme Court, the legal effect was that the relevant notification revived. The respondents maintain that as a result of such order of the Supreme Court, the application for special rate of value addition had to be made in terms of the notification; and, upon the extended time as per the notification of June 10, 2008 elapsing, a request for a special rate of value addition for any particular product could no longer be made or entertained.

6. In the light of a subsequent event and an order inter partes that binds the respondents herein, it is not necessary to go into the effect of the order of the Supreme Court passed on December 7, 2015 as contended by the Department. However, it may only be recorded that when an order is stayed by a superior forum, the legal effect is that the relevant order impugned before the superior forum remains in suspended animation. A mere stay of an order does not imply that the order impugned is obliterated. It is only upon the order impugned being set aside would that order be obliterated and it will be deemed as if the order had never been passed. Further, certain practical difficulties arise in