PLATINUM ALLOYS PVT. LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) Heard Ms. M. L. Gope and Ms. N. Hawelia, learned counsels for the petitioners. Also heard Mr. S. C. Keyal, learned standing counsel for the GST.

(2.) These writ petitions have been filed by the petitioner which raise common questions of law. All these petitioners had set up their industries for manufacturing under the North East Industrial and Investment Promotion Policy (NEIIPP), 2007 and were entitled to certain exemptions under the said policy which includes exemption from payment of Central Excise Duty. Along with the excise duty as per the laws in force at the relevant point in time, they were also required to pay Education and Secondary and High Education Cess. This Education Cess and Secondary and High Education Cess were required to be calculated on the basis of the excise duty payable. A question had arisen as to whether in view of the exemptions granted to excise duty under the NEIIPP, 2007, the petitioners would also be entitled to exemption from payment of Education Cess and Secondary and High Education Cess. The said question at the relevant point in time was answered by the Apex Court in M/s SRD Nutrients Private Limited Vs. Commissioner of Central Excise, Guwahati reported in (2018) 1 SCC 105 in terms of which judgment the appellants, therein, were held to be entitled to the refund of Education Cess and Secondary and High Education Cess which was paid along with excise duty once the excise duty itself was exempted from levy. In terms of the said order, the petitioners who were similarly placed manufacturers like the appellants before the Apex Court, also claimed that they were also entitled to be granted the refund by the Central Excise Authority. However, in spite of the Judgment passed by the Apex Court, no refunds were granted to the petitioners by the respondent authorities. Being aggrieved the writ petitioners approached this Court and in pursuance to orders passed by this Court in writ petition the refunds available to the petitioners were sanctioned although the same was appropriated towards other outstanding demands.

(3.) Thereafter, the Apex Court came to deliver a Judgment in M/s Unicorn Industries Vs. Union of India reported in (2020) 3 SCC 492. By relying on the earlier judgments of the Apex Court rendered in Union of India and Ors. Vs. M/s Modi Rubber Limited reported in (1986) 4 SCC 66 and Rita Textiles Pvt. Limited and Ors. Vs. Union of India reported in (1986) Supp. SCC 557, the Apex Court held that the Judgment in M/s SRD Nutrients Private Limited (supra) and Bajaj Auto Limited Vs. Union of India reported in 2019 SCC Online SC 421 limited to be per incuriam. Pursuant to the judgment of the Apex Court in Unicorn Industries (supra), the respondent authorities issued the impugned demandcum- show cause notices requiring the petitioners to show cause as to why the refund granted to the petitioners on account of Education Cess and Secondary and Higher Education Cess, the refund should not be recovered from the petitioners. The details of show cause notices to the writ petitioners are as under:- <IMG>JUDGEMENT_88_LAWS(GAU)1_2023_1.JPG</IMG> <IMG>JUDGEMENT_88_LAWS(GAU)1_2023_2.JPG</IMG> <IMG>JUDGEMENT_88_LAWS(GAU)1_2023_3.JPG</IMG> <IMG>JUDGEMENT_88_LAWS(GAU)1_2023_4.JPG</IMG> <IMG>JUDGEMENT_88_LAWS(GAU)1_2023_5.JPG</IMG>