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TMI Blog2016 (12) TMI 476X X X X Extracts X X X X X X X X Extracts X X X X ..... hese industries were made eligible for 100% tax exemption and concession by the two notification(s) of 08.07.1999 and 25.04.2007, for 10 year period. As per the incentive mechanism, full refund of excise duty was provided to the units. 2. Mr. G.N. Sahewalla, the learned Sr. counsel is appearing for the petitioners in the WP(C) Nos.851/16, 857/16, 2998/16, 3006/16, 3161/16, 3179/16, 7902/15, 7897/15 as well as in the Cont.Cas(C) Nos.831/15, 4/16; Ms. M.L. Gope, the learned advocate appears for the petitioner in the WP(C) Nos.269/16, 111/16, 265/16, 112/16, 271/16, 261/16, 268/16, 263/16, 272/16, 262/16, 119/16, 267/16, 270/16, 273/16, 266/16, 6114/16, 264/16, 2314/16, 7899/15, 7828/15, 7843/15 as well as in the Cont.Cas(C) Nos.596/15, 598/15, 599/15, 600/15, 601/15, 603/15, 608/15, 609/15, 610/15, 611/15, 612/15, 774/15, 775/15, 776/15, 778/15, 806/15, 808/15, 814/15, 815/15, 41/16, 42/16, 636/16, 637/16; the learned advocate Mr. R.K. Agarwal, appears for the petitioner in the WP(C) No.7692/15 and Mr. R.S. Mishra, the learned counsel appears for the petitioner in the WP(C) No.1126/16. The respondents in these cases are represented by Mr. S.C. Keyal, the learned Asstt. SGI. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and other Appeals and in those proceedings, the petitioners were arrayed as respondents. The Division Bench passed the first interim order on 11.08.2009, whereby the refund in terms of the verdict in the writ petition was directed to be limited, to the amount offered by the excise authorities or in other words, the judgment of the learned Single Judge was rendered inoperative, during the pendency of the Appeal. 7. However for similar litigations emanating from the Gujrat High Court, the Supreme Court on 13.01.2012 in the SLP(C) Nos.28194 - 28201/2010 passed a different type of interim order on the following terms:- "We have heard learned counsel for the parties on the question of stay of the impugned judgment. Having done so, we direct that operation of the impugned judgment shall remain stayed till further orders, subject to the petitioners' releasing to the respondents 50% of the amount due to them in terms of the impugned judgment on the respondents' furnishing solvent surety to the satisfaction of the jurisdictional Commissioner, within four weeks of their furnishing the said surety." 8. Taking a cue from the interim order passed in the Gujarat Cases, the Misc. Case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed the following interim order on 07.12.2015, for the lead case going from the Gauhati High Court: "............................. Pending further orders, we direct that subject to the petitioners releasing 50% of the amount due to the respondent in terms of the impugned judgment on the respondents' furnishing solvent surety to the satisfaction of the jurisdictional commissioner, the operation of the impugned judgment shall remain stayed. We further direct that contempt proceeding initiated against the petitioners shall subject to their releasing 50% of the amount as stated above remain stayed ...................................". 12. The departmental authorities however failed to refund the payable amount to the concerned litigants and accordingly Contempt Cases came to be filed in the Gauhati High Court. The Division Bench in the Cont.Cas(C) No.609/2015 and other cases, issued direction on 09.12.2015 to the authorities to comply with the interim order passed by the Hon'ble Supreme Court on 07.12.2015, in the I.A. No.3/2015. 13. Following the interim order passed by the Hon'ble Supreme Court, the High Court and the order passed in the contempt cases, the Deputy Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able appended to the impugned notification, whereby the different rates of refund ranging from 15% - 75%, was permitted to be paid back to the manufacturer. The focus of the litigation related to whether the concerned manufacturer will be entitled to 100% excise duty exemption, as was envisaged by the notification of 25.04.2007 or will receive exemption at lesser rates, as specified in the curtailment notification(s) dated 27.03.2008 and 10.06.2008. At no stage it was the stand of the department that the manufacturer will receive benefit of exemption at a lesser rate than what was specified, in the two curtailment notifications of 27.03.2008 and 10.06.2008 respectively. Both impugned notifications as earlier noted, were quashed in the writ proceeding by the High Court. Thus the entitlement, to the extent of the applicable rate for the concerned industry, was never a matter of dispute in the litigation. To put it differently, the litigation relates to whether the manufacturers are entitled to exemption in full, beyond the rate that was stipulated in the two impugned notification(s) of 27.03.2008 and 10.06.2008. 16. The entitlement to curtailed refund of the excise duty under the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed rate (under the impugned notification dated 27.03.2008). For this unit, the differential amount was determined by, subtracting from the amount deposited through PLA, the sum already refunded by the impugned notification. Thereafter, in terms of the interim order passed by the Hon'ble Supreme Court, 50% of the differential due was calculated by the Commissioner. This methodology in our opinion, reflects the correct amount due, mentioned by the Hon'ble Supreme Court, in its order dated 07.12.2015 in the I.A. No.3/2015. Hence, any lesser amount quantified as the payable sum to the petitioners, in our comprehension, do not conform to the interim order passed by the Hon'ble Supreme Court and also by the High Court. Having concluded thus, we do not hesitate to declare that the methodology of calculation made by the Deputy Commissioner on 12.02.2016 to determine the refundable amount is not the correct mode as the authority has unjustly taken into account, the undisputed segment of the refundable excise duty, to reach a lesser figure, for making refund to the successful litigant, as an interim measure. 20. In the above context, it would be appropriate to take note of the fact that for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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