Gauhati HC in the case of M/s SC Johnson Products Pvt Ltd
M/s SC Johnson Products Pvt Ltd
The Union of India
Facts of the Case:
A petitioner is an industrial unit, which had set up its manufacturing unit in the North-eastern region on the basis of certain industrial policy by which 100% exemption was granted in respect of excise duty.
In the course of their manufacturing activity, a subsequent decision was taken by the authorities that the exemption of excise duty would be limited to 34%. Being aggrieved, a writ petition was instituted before this Court being WP(C) No.1707/2008.
The said writ petition was allowed by the judgment dated 24.06.2009 of the learned Single Judge. On an appeal being carried to the Division Bench by the Revenue Department, the judgment of the learned Single Judge was upheld and the decision to limit the benefit of excise duty refund up to 34% stood interfered.
On a further appeal being carried by the Revenue Department before the Supreme Court, the judgment dated 22.04.2020 was passed in a series of appeals, which also included the appeal against the order of the Division Bench of this Court.
The Supreme Court while interfering with the judgments of the High Courts in its judgment and order dated 22.04.2020 in SLP (C) No.028194-028201/2010 had provided as follows:-
“ …… However, it is further clarified that the pending refund applications shall be decided as per the subsequent notifications/industrial policies which were impugned before the respective High Courts and they shall be decided in accordance with the law and no merits and as per the subsequent notifications/industrial policies impugned before the respective High Courts. All these appeals stand disposed of accordingly.”
Observations of the Court:
It is the case of the petitioner that there was an application of the petitioner dated 27.05.2008 claiming that under the notification in force, the petitioner is entitled to an exemption/refund from excise duty up to 65% and thereafter several other applications were submitted to the department by the petitioner on the same claim but in respect of other assessment years.
Mr. SC Keyal learned ASGI submits that the application dated 27.05.2008 had already been considered by the department and rejected. Mr. Laxmikumaran learned senior counsel for the petitioner on the other hand states that against such order of rejection, an appeal is pending before the appropriate appellate Tribunal.
But it is also stated that the similar subsequent applications are still pending and no orders have been passed on the same.
This writ petition is instituted on the grievance that as per the further clarification of the Supreme Court in its judgment dated 22.04.2020, consideration is required to be given to the said applications of the petitioner inasmuch as, it is a pending refund application, which the Supreme Court required that it be decided by the authorities as per the terms of the subsequent notification/industrial policies, which were assailed before the respective High Courts.
A further apprehension has been raised by the petitioner that they had given a bank guarantee up to 100% of the excise duty and the respondent authorities may encash the bank guarantee without arriving at a decision on the said applications of the petitioner.
The judgment of the Court:
Mr. SC Keyal learned ASGI fairly submits that the applications of the petitioner do require consideration as clarified by the Supreme Court in its judgment dated 22.04.2020 and further that the respondent authorities at present do not have any intention to encash the bank guarantee without giving due consideration to the said applications of the petitioner.
Considering the matter in its entirety, we require the respondents in the Excise Department to give consideration to the applications of the petitioner and pass reasoned orders on the same. The requirement of passing the reasoned order be done within a period of three months from the date of receipt of a certified copy of this order.
We further provide that till such consideration are made and the reasoned orders passed, the authorities in the Excise department shall not encash the bank guarantee given by the petitioner in respect of 100% of the excise duty paid by them. The writ petitioner to intimate the Department by email a list of all such applications that are required to be given consideration as per this order.
if the Department in response requires, a fresh copy of the applications is provided for doing the needful. If such a list, or the copies of the applications, as the case may be, are not provided by the petitioner, the respondents would not be under any obligation to perform the requirement of this order.
The writ petition stands disposed of in the above terms.