2023 (1) TMI 104 - HC - Central Excise

Area Based Exemption - Determination of value addition - validity of notification of June 10, 2008 sustained by the Apex Court - the respondents (Revenue) now seeking to assert that the petitioning assessee applied for determination of the special rate of the value addition at a time long after the period therefor under the notification of June 10, 2008 - respondents contend that as a consequence of such stay granted by the Supreme Court, the legal effect was that the relevant notification revived - application for special rate of value addition had to be made in terms of the notification - HELD THAT - In view of the submission of the Department as recorded in the order dated February 26, 2021 which has attained finality and which has not sought to be assailed by the Department, the issue as to whether the application was made by the petitioning assessee for determination of a special rate of value addition within the permissible time or not cannot be reopened. Implicit in the submission of the Department as recorded in the order of February 26, 2021 is the acceptance that the matter would be considered on merits. If the Department wanted to assert that the belated application of the petitioning assessee could not be entertained in terms of the relevant notification, the issue would have called for an answer in course of the proceedings. It was open to the Department to canvass such ground - The Department is now estopped from urging the objection of limitation and the respondents are bound by the submission attributed to them in the order of February 26, 2021 to consider the application for determination of the special rate of value addition in accordance with law, irrespective of when the application therefor may have been made by the petitioning assessee. At this stage, it is pointed out on behalf of the petitioner that by a communication in writing dated June 1, 2021, the Commissioner of Goods and Services Tax, Shillong had indicated at paragraph 3 of the relevant document that the rate of value addition in respect of the goods manufactured by the petitioning assessee was determinable at the rate of 81.9 per cent. Full particulars of the determination were indicated. Petition disposed of by affording the respondents a period of four weeks from date to affirm or alter the determination indicated in the letter of June 1, 2021 in accordance with law so that appropriate steps consequent thereupon can be taken by the parties thereafter.

Summary

Issues:
Interpretation of a previous court order regarding a notification affecting manufacturers in the North-East region; Effect of a Supreme Court stay on a High Court judgment invalidating a notification; Obligation of authorities to settle accounts based on previous court orders; Reopening of the issue of timely application for determination of special rate of value addition; Estoppel and binding effect of previous submissions by authorities; Determination of value addition rate for goods manufactured by the petitioner.

Analysis:
The judgment revolves around the interpretation of a previous court order dated February 26, 2021, regarding a notification impacting manufacturers in the North-East region. The court notes that the real answer to the issue raised depends on the understanding of the previous court order between the parties. Prior to the issuance of a specific notification in 2008, manufacturers in the North-East region were exempted from the Central excise component. However, the subsequent notification in 2008 altered this exemption to cover only the value-added component, not the entirety of the Central excise component.

The respondents argue that a Supreme Court stay on a High Court judgment invalidating the 2008 notification revived the notification's legal effect. They claim that due to this stay, applications for special rates of value addition had to be made within the timeline specified in the notification. The court emphasizes that a stay does not erase the impugned order; it merely suspends it until further action is taken. The judgment highlights practical difficulties that may arise when notifications are challenged and stayed, affecting the rights of applicants.

The court acknowledges that the High Court judgment invalidating the 2008 notification was set aside by the Supreme Court in 2020. Subsequently, a writ petition was filed in the present court, leading to an agreement between the parties to settle the petitioner's account regarding the special rate of value addition. The petitioner filed the current petition as the authorities had not settled the accounts as agreed upon. The court rules that the Department is estopped from objecting to the timeliness of the petitioner's application based on their previous submissions and obligations.

Regarding the determination of the value addition rate for goods manufactured by the petitioner, a communication from the Commissioner indicated a specific rate. The court disposes of the petition by granting the respondents four weeks to affirm or alter the determination in accordance with the law. No costs are awarded in this matter.