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TMI Blog2021 (4) TMI 226X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 11A reveals that the power under Section 11A for recovery of duties not levied or not paid or short levied or short paid or erroneously refunded will be available to the departmental Officer only on the decisions mentioned in Sub-section (4) unless the concerned departmental Officer is satisfied that the refund granted earlier was because of any or all of the conditions mentioned under sub-Section (4), the refunds cannot be treated to be erroneous. The mandate of section requires the departmental Officer to apply its mind and only upon satisfaction of the conditions mentioned under sub-Section (4) of Section 11A can any refund granted earlier be treated to have been erroneously. It can be held that the concerned departmental Officer exercising power under Section 11A of the Central Excise Act must arrive at finding that the earlier order/refunds as have been granted in the present proceedings, were contrary to the law and therefore, erroneous and that the same are required to be reopened or recovered by invoking the powers under Section 11A. The refunds were granted by the Department in terms of the Judgment in M/S SRD Nutrients Private Limited [ 2017 (11) TMI 655 - SUPREME C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustries [ 2019 (12) TMI 286 - SUPREME COURT ] holding M/S SRD Nutrients Private Limited [ 2017 (11) TMI 655 - SUPREME COURT ] to be per incuriam, will not permit the Department to unilaterally revoke or re-open the issue without taking recourse to the remedies available to them before a judicial forum. Judicial Review in Show Cause Notice There is another aspect that needs to be dealt with in the present proceedings. The petitioners before this Court in the present proceedings are questioning the show cause notices issued by the department. Although, the High Court in exercise of judicial review under Article 226 of the Constitution of India would not ordinarily interfere with the show cause notices issued, however, where a show cause notice has been issued by an authority wholly without jurisdiction or by way of wrongful usurpation of power, the person aggrieved need not be relegated to avail any statutory alternative remedy available - In the facts of the present case, there is no dispute that the refunds granted earlier to the petitioners were in pursuance to judicial orders passed by the Apex Court in M/S SRD Nutrients Private Limited [ 2017 (11) TMI 655 - SUPREME COURT ] and/o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TD. (FORMERLY KNOWN AS M/S ARUNACHAL SAW AND VENEER MILLS PVT. LTD., GREENPLY INDUSTRIES LTD., M/S GATTANI POLYMERS, M/S NEW AGE PETCOKE PVT. LTD., NORTH EAST ROOFING (P) LTD., M/S K.D. COKES, UPPER ASSAM PETROCOKE PRIVATE LIMITED, M/S. K.D.IRON AND STEEL CO., M/S PRAG ELECTRICALS PVT LTD, M/S JUMBO ROOFING AND TILES, M/S GUWAHATI CARBON LIMITED, M/S. PCL CEMENT AND PIPE INDUSTRIES, M/S OZONE AYURVEDICS, M/S RIVER VALLEY CEMENT CORPORATION, JUDGMENT ORDER (CAV) Heard Dr. A. Saraf, learned senior counsel assisted by Mr. P. Das, learned counsel for the petitioner in WP(C) No. 2918/2020, WP(C) No. 1366/2020, WP(C) No. 2916/2020, WP(C) No. 2920/2020, WP(C) No. 2926/2020, WP(C) No. 2940/2020, WP(C) No. 3155/2020, WP(C) No. 3156/2020, WP(C) No. 3237/2020, WP(C) No. 3298/2020, WP(C) No. 3372/2020, WP(C) No. 3464/2020, WP(C) No. 3763/2020, WP(C) No. 4031/2020, WP(C) No. 4035/2020, WP(C) No. 4046/2020 and WP(C) No. 4194/2020. 2. Mr. R. K. Choudhury, learned counsel assisted by Mr. A. Das, learned counsel appears for the petitioners in WP(C) No. 1780/2020, WP(C) No. 2899/2020 WP(C) No. 4824/2020. 3. Mr. G. Sahewalla, learned senior counsel assisted by Mr. M. Sahewalla, learned counsel appear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Department, the refunds sanctioned to the petitioners earlier were made pursuant to the Judgment of the Apex Court in SRD Nutrients Pvt. Ltd. (supra) and the said Judgment having been held to be per incuriam by the Apex Court in the recent Judgment of M/S Unicorn Industries Vs- Union of India; the refunds earlier granted to the petitioners on the strength of the Judgment in M/S SRD Nutrients (supra) have become erroneous refunds and, therefore, the same are sought to be recovered from the petitioners by way of impugned show cause notice. 10. For enhancing the industrial progress in the North-East Region and for attracting the investees with a view to foster industrial growth and industrial activities in the North-East region, the Govt. of India announced an Industrial Policy Resolution vide Notification dated 24.12.1997. The Industrial Policy Resolution (hereinafter referred to as IPR ) contained a package of incentives and concessions for the industries established in the entire North-East Region. 11. The said IPR amongst others declared all industrial activities in growth centers; integrated infrastructural development centers, export promotion and industrial parks, export ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d capacity by not less than 25% on or after the 24th day of December, 1997. The exemption contained in the said notifications in terms of para 4 of the Notification was made applicable to any of the above stated Industrial units for a period not exceeding 10 years from the date of publication of the Notification in the official Gazette or from the date commencement of commercial production, which ever was later. 13. The Government of India on 01.04.2007 announced a new Policy, namely, the North-East Industrial and Investment Promotion Policy (NEIIPP), 2007. Vide the said Policy, the Government of India vide the NEIIPP, 2007 has also approved a package of fiscal concessions and other concession for the North-East Region. In the said new Policy NEJIPP of 2007, on the issue of the excise duty exemption under clause (v) it was clearly noted that hundred per cent excise duty exemption will be continued, on finished products made in the North-Eastern Region, as was available NEIP, 1997 . 14. In terms of the promise made by the Government of India in the North-East Industrial and Investment Promotion Policy (NEIIPP), 2007 dated 01.04.2007, Notification No.20/2007 was issued conferring ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Current in respect of the above mentioned final products w.e.f. 25.11.2011. 17. By Finance Act, 2004, the Parliament levied Education Cess by way of the Finance Act, 2004. Education Cess was levied on goods specified in the First Schedule of the Central Excise Tariff Act, 1985, being goods manufactured or produced on which there shall be a duty of excise i.e. Education Cess, @ 2% calculated on aggregate of all duties of excise (including special duty of excise or any other duty of excise but excluding Education Cess on excisable goods) which are levied and collected by the Central Govt. in the Ministry of Finance (Department of Revenue) under the provision of Central Excise Act, 1944 or any other law for the time being in force. It was also provided that Education Cess on excisable goods shall be in addition to any other duties of excise chargeable on such goods under Central Excise Act, 1944 or any other law for the time being in force. The provisions of Central Excise Act, and the Rules made thereunder, including those relating to refunds and exemptions from duties and imposition of penalties shall as far as may be apply in relation to the levy and collection of Education Cess on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucation Cess is payable on excise duty and those assessees who are required to pay excise duty have to shell out Education Cess as well. It was further held that Education Cess was introduced by Sections 91 to 93 of the Finance (No. 2) Act, 2004 and as per Section 91 thereof, Education Cess is the surcharge which the assessee is required to pay. The Apex Court held that Section 93 of the Act of 2004 made it clear that Education Cess is payable on the excisable goods i.e. in respect of goods specified in the First Schedule to the Central Tariff Act, 1985 and the same was to be levied @ 2% and calculated on the aggregate of all duties of excise which were levied and collected by the Central Government under the provisions of the Central Excise Act, 1944 or under any other law for time being in force. Subsection (3) of Section 93 provided that the provisions of the Central Excise Act, 1944 and the rules made thereunder, including those related to refunds and duties etc. shall as far as may be applied in relation to levy and collection of Education Cess on excisable goods. In view of the aforesaid, the Apex Court held that when there is no excise duty payable, as it is exempted, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Education Cess, it cannot be said that same are exempted. The Apex Court held that in Union Of India Ors Vs- M/S Modi Rubber Limited reported in (1986) 4 SCC 66, and in Rita Textiles Pvt. Ltd. and Ors. Vs- Union of India reported in (1986) Supp SCC 557 had already laid down the law and the subsequent judgment rendered by the Apex Court in the case of SRD Nutrients(supra) being contrary to the view taken earlier, was held to be per incuriam. The Apex Court in Unicorn Industries(supra) held that earlier binding judgments of the Apex Court in M/S Modi Rubber Limited and Rita Textiles Pvt. Ltd. were not placed for consideration and, therefore, decision of the Apex Court rendered in SRD Nutrients and Bajaj Auto Limited were clearly per incuriam. 24. After the decision of the Apex Court in Unicorn Industries, the Department issued impugned Demand-cum-show cause notices to the petitioners on various dates, seeking recovery of the refund of Education Cess, Secondary Higher Education Cess earlier sanctioned/granted to the petitioners were treated to have been erroneously made. The Department by the impugned show case notices held that the amounts so refunded are liable to be recovered from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts, Cosmetics or Toilet Preparation and Medicaments of Ayurvedic ₹ 20,10,048/- C.No. V (18)10/SCN- CESS/OZONE AYURVEDICS- II/ACG-I/2020 dated 02.06.2020 Assistant Commissioner Guwahati, Assam. 5 WP(C)/2899 /2020 M/S GUWAHATI CARBON LIMITED Versus THE UNION OF INDIA AND 2 ORS. Office and factory at NH- 37, Pub- Boragaon, Gorchuk, Kamrup(M), Guwahati- 781035, Assam. Calcined Petroleum Coke (CPC) Dt.13.03.2019 E.Cess + S HE Cess= ₹ 1,27,57,035/- 17.06.2020 C.No.V(15)03/A DJ/CGST-HQRS/GHY/CE/ 2020 Issued by Joint Commissioner. 6 WP(C)/2916 /2020 M/S JUMBO ROOFING AND TILES Vs. UNION OF INDIA 3 ORS Place of business at Sila, Haluguri Chowk, Changsari, Kamrup(R), Assam- 781001 excisable goods viz. Asbestos Cement Corrugated Sheet and Asbestos Cement Plain Sheet ₹ 8,07,137/- C.No.V(18)04/S CN- CESS/JUMBOR OOFING/ACG- I/2020/2275 Dated 27.05.2020 Superintendent (Tech-I), CGST Central Excise, Division-I. 7 WP(C)/2920 /2020 M/S JUMBO PACKAGING INDUSTRIES Vs. UNION OF INDIA 3 ORS Place of business at Udalbakra, Lal Ganesh, Opposite Kali Mandir, Guwahati- 781034, Assam. excisable goods viz. Corrugated cartons/ Paper scrap ₹ 3,91,118/- C.NO.V(18)25/S CN- CESS/Jumbo Pac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11/ E.CESS/Refund/ ACS/2019/691 dated 09.06.2020 Assistant Commissioner, Silchar, Assam. 15 WP(C)/3087 /2020 UPPER ASSAM PETROCOKE PRIVATE LIMITED Vs UNION OF INDIA AND ANR Office at No. 2, Makum Pather, P.O. Margherita, Dist: Tinsukia- 786181, Assam Manufacture and sale of Calcined Petroleum Coke (CPC) E.Cess + SHE Cess= ₹ 13,63,561/- F.No.V(15)/07/S CN/UAPC/ACT/ 2019-20/215 Dated 06.02.2020 Assistant Commissioner, Central Goods and Service Tax Division, Tinsukia 16 WP(C)/3113 /2020 KAMLANG SAW AND VENEER MILLS PVT. LTD. Vs UNION OF INDIA AND 3ORS. Office at Palasbari, Mouza- Chayani, Kamrup- 781128, Assam. Plywood, Block Board Flush Door ₹ 15,52,417/- V(18)14/SCN/- CESS/KAMLANG /ACG-I/2020/2342 Dated- 02.06.2020 Assistant Commissioner 17 WP(C)/3155 /2020 CEMENT INTERNATIO NAL LTD. Vs UNION OF INDIA AND 2 ORS. Manufacturing unit at Davendranagar, Jhoom Basti, P.O. Badarpurghat, Dist- Karimganj, Assam. excisable goods viz. cement (OPC and PPC) ₹ 30,80,122/- C.NO.IV(10)17/ E.CESS/CIL/Ref und/ACS 2019/693 Dated 09.06.2020 Assistant Commissioner. 18 WP(C)/3156 /2020 M/S. K.D.CEMENT S Vs UNION OF INDIA AND 2 ORS. Factory at Bhomraguri, Samaguri, P.O.- 782140, Dist- Na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ND CEMENT PVT. LTD. Vs THE UNION OF INDIA AND 4 ORS. Office and factory at Village Bamungaon, Lanka, Dist- Nagaon, Assam. excisable commodities viz Cement (OPC PPC) and Clinker ₹ 16,25,503/- C.No.V(18)247/ Refund/BCPL/A CG-II/2018 dated 28.07.2020 Assistant Commissioner, Guwahati, Assam. 26 WP(C)/3464 /2020 ASSAM ROOFING LTD. Vs UNION OF INDIA AND 2 ORS. Office and Factory situated at Bonda, Narengi, Assam. excisable commodities viz. Galvanized Plain Sheets, Galvanized Corrugated Sheets and Asbestos products ₹ 90,70,956/- C.No.V(15)15/A DJ/CGST- HQRS/GHY/CE/ 2020/750-51 dated 06.08.2020 Joint Commissioner, GST Central Excise Commissionera te, Guwahati. 27 WP(C)/3596 /2020 M/S. INDIA CARBON LTD. Vs UNION OF INDIA AND ANR. Office at Noonmati, Guwahati Calcined Petroleum Coke and Electrode Carbon Paste E.Cess + SHE Cess= ₹ 63,42,164/- C.No.V(15)12/A DJ/CGST- HQRS/GHY/CE/ 2020 dated 06.08.2020 Joint Commissioner, GST Central Excise Commissionera te, Guwahati. 28 WP(C)/3610 /2020 ASSAM CARBON PRODUCTS LTD. Vs UNION OF INDIA AND ANR Office at Narengi Chandrapur Road, Bikruchi, Narengi, Guwahati- 781026, Assam. manufacture and sale of electrical grade carbon blocks, mech ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, AC Plain Sheet and Accessories ₹ 29,35,614/- C.NO.V(18)242/ REFUND/NERPL /ACG- II/2018/1035 dated 22.09.2020 Assistant Commissioner, CGST, Guwahati Division- II. 35 WP(C)/4046 /2020 PDP STEELS LTD Versus UNION OF INDIA AND 2 ORS Registered office at Bonda, Narengi, Guwahati- 781026, Assam excisable commodities viz. CR Coils, End Cut and Scrap, HR Slit Coil/ Scrap and MS Wire ₹ 32,73,850/- C.NO.V(18)244/ REFUND/PDPST EELS/ACG- II/2018/1018 dated 21.09.2020 Assistant Commissioner, CGST, Guwahati Division- II. 36 WP(C)/4053 /2020 M/S. B.R.METTALI CS Vs UNION OF INDIA AND ANR Factory at Integrated Industrial Development Centre, Village- Borshil, P.S. Moranjana, Rangia, in the district of Kamrup(R), Assam- 781354 M.S. Billet and M.S. Ingots E.Cess + SHE Cess= ₹ 17,27,580/- c.No.V(18)03/S CN-CESS/B.R. METTALLICS/A CG- I/2020/2345 dated 02.06.2020 Assistant Commissioner, GST Central Excise Guwahati-I Division, Guwahati. 37 WP(C)/4194 /2020 KAMAKHYA PLASTICS PVT. LTD. Vs UNION OF INDIA AND 2 ORS. Factory situated at Bonda, Narengi, Guwahati excisable goods i.e UPVC Pipes and Fittings and plastic water storage tank ₹ 7,92,439/- C.NO.V(18)249/ REFUND/KPPL/ ACG- II/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Apex Court in the subsequent decision rendered in M/S Unicorn Industries(supra) held that judgment passed by the Apex Court earlier in SRD Nutrients Pvt. Ltd. (supra) to be per incuriam. (ii) As the refunds granted to the petitioners was in terms of the law laid down by the Apex Court in the case of SRD Nutrients(supra) prevailing at the relevant point in time, cannot be held to be erroneous and, therefore, the impugned demand-cum-show cause notices issued by the Department under Section 11A of the Central Excise Act is without jurisdiction. (iii) That the binding effect of any judgment rendered will not be reversed or effected even if the said judgment is overruled and/or held to be per incuriam by a subsequent judgment as the refund granted to the petitioners were made by the Central Excise Department in terms of the judgment rendered by the Apex Court in SRD Nutrients which was the law prevailing at the relevant point in time. The said judgment being held to be per incuriam by later judgment will not alter the binding effect of SRD Nutrients under which the refunds were already granted to the petitioners. Accordingly the refunds granted cannot be said to be erroneous as have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been rendered per incuriam by the Apex Court will not have any effect on the actions initiated under such judgment namely, grant of refunds. It cannot be treated to have been made erroneously. Therefore, the impugned demand notices are contrary to the provisions of Section 11A of the Central Excise Act, 1944 as the impugned recovery of refunds granted earlier sought to be made cannot be treated to be erroneous. 28. The learned senior counsel further submits that when a judgment is declared to be per incuriam , by a latter Bench or a larger Bench, then the Judgment declared per incuriam loses its precedential value. However, the binding effect of the judgments between the parties to the said judgment remains conclusive and cannot be altered except otherwise by way of an appeal or review by any of the parties to the Judgment. It is submitted that pursuant to the judgment of the SRD Nutrients(supra), the departments granted the refunds claimed by the petitioners. The review petition filed before the Apex Court by the Department at the relevant point of time was also dismissed. Accordingly, the refunds having been granted under orders of the Apex Court, in view of M/S SRD Nutrients (su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e refunds made earlier by the Department in terms of the judgment of the Apex Court rendered in SRD Nutrients(supra) and were not on incorrect assumption of facts or incorrect application of law or nonapplication of mind, the same cannot be treated to be erroneous in order to bring it within the ambit of Section 11A of the Central Excise Act 1944. The learned senior counsel submits that the refunds orders passed by the Department in respect of refunds of Education Cess and Secondary and Higher Education Cess cannot be said to be erroneous, inasmuch as, the same where refunded by the Department on the basis of the law existing at the relevant pointing time as was laid down by the Apex Court in SRD Nutrients(supra). 32. The learned senior counsel submits that the subsequent contrary view taken by the Apex Court in a later judgment i.e. M/S Unicorn Industries Ltd(supra) will not render any proceedings concluded to be illegal and thereby making the refunds already granted erroneous . It is submitted that there is no provision under the Central Excise Act, 1944, which permits the concerned Officer under the Department to revisit orders finally made by him/her or his or her predecessor i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained SLP proposal may be forwarded to the Board on the aforesaid instructions. The learned Sr. counsel submits that a bare perusal of the instructions clearly reveal the Department has accepted that the refunds granted earlier and that they have attained finality. Therefore, Field Officers/ departmental officers have been instructed to contest by filing statutory appeals/ writ appeals or review petitions or forward a proposal for filing SLP to the Board. Accordingly, it is submitted that the Departmental Officers on whom departmental instructions/circulars are binding, cannot act in contrary to such instructions issued and continue to pursue the impugned demand notices issued. It is submitted that in view of the instructions dated 09.01.2020, the impugned show cause notices are required to be dropped by the Department and not be pursued with. 35. The Department contested that case by filing their affidavit. Mr. S. C. Keyal, learned standing counsel submits that since common questions of law are involved in the present proceedings, the affidavits filed in W.P.(C) No. 2918/2020, W.P.(C) No. 1366/2020 and W.P.(C) No. 1780/2020 will reflect, the stand of the department in respect of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Cess and Secondary and Higher Education Cess are void and without jurisdiction. The Department contended that the questions which arise for consideration before this Court are as under:- (i) Whether the law laid down in the judgment dated 06.12.2019 in Unicorn Industries shall have retrospective effect as the earlier judgment dated 10.11.2017 in SRD Nutrients Pvt. Ltd. held to be per incuriam. (ii) Whether refund of Education Cess and Secondary and Higher Education Cess have become erroneous refund in view of declaration of judgment dated 10.11.2017 (SRD Nutrients Pvt. Ltd.) as per incuriam and as such recovery of Education Cess and Secondary and Higher Education Cess sought through impugned Demand notice is legal and valid. 37. The learned standing counsel contended that the law declared by the Hon ble Apex Court in the context of the present proceedings, will have to be taken to be effective retrospectively since the Apex Court in Unicorn Industries Limited (supra) had already declared that the SRD Nutrients Pvt. Ltd. (supra) to be per incuriam in view of Modi Rubber(supra), and M/S Rita Textiles (supra). As such, the refunds of Education Cess and Secondary and Higher Educati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rients (supra) to be per incuriam, the legal position will have to be given retrospective effect. Therefore, as the refunds granted by the Department earlier were granted erroneously and contrary to the law laid down in Modi Rubber(supra). Consequently the demand-cum-show cause notices for recovery of the education Cess and Secondary and Higher Education Cess refunded has been rightly issued and, therefore, the same ought to be interfered with. In support of his contentions that decisions rendered in ignorance of law cannot bind subsequent benches as held by the Apex Court. The learned standing counsel referred to Jagannath Temple Managing Committee Vs- Siddha Math reported in (2015) 16 SCC 542. The learned standing counsel also relied upon the Judgment of Apex Court in P.V. George and Ors, -Vs- State of Kerala reported in (2007) 3 SCC 557 and M.A. Murthy Vs- State of Karnataka and Ors., reported in (2003) 7 SCC 17 to submit that any decision of the Apex Court unless indicated therein to be operative prospectively will have to operate retrospectively. Where the law was ambiguous, the correct position of law will have to be operative retrospectively unless otherwise indicated in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll apply only to the company M/S. SRD Nutrients Pvt. Ltd. and other companies who were party before the Hon'ble Apex Court in the case of SRD Nutrients vs. Union of India. The said company M/S. SRD Nutrients Pvt. Ltd. which was one of the industrial units in Assam was eligible to Excise Duty exemption under the aforesaid notification and who was denied refund of Education Cess and Secondary and Higher Education Cess by the Assessing Officer, challenged the order of the Assessing Officer by filing an appeal before the Commissioner of Central Excise and Customs (Appeals), Guwahati. However, these appeals were dismissed by the Commissioner (Appeals) and the order of the Commissioner (Appeals) was thereafter also upheld by the Customs Excise Service Tax Appellate Tribunal (CESTAT), East Regional Bench, Kolkata by the impugned judgment. Against the said order passed by the learned CESTAT, an SLP was preferred before the Hon'ble Apex Court which was decided by the Hon ble Apex Court vide judgment dated 10.11.2017 passed in SRD Nutrients Pvt. Ltd vs. Commissioner of Central Excise, Guwahati reported in (2018) 1 SCC 105. As such, the said company being a party in the said case, res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that they have not passed on the tax burden to the end users/consumers, refund of Education Cess and Secondary and Higher Education Cess will amount to against enrichment and therefore, the refunds submitted be allowed. 42. The learned counsel submits that the Writ jurisdiction under Article 226 of the Constitution has wide amplitude. These writs are therefore, referred as prerogative writs and even now retain its discretionary character. The Court will not always issue a writ simply because it is lawful to do so. Therefore, even if a petitioner establishes infringement of some legal right, the Court may still refuse to issue a writ. When therefore a petitioner invokes writ jurisdiction and urges the High Court to issue an appropriate writ, his legal rights and infringement thereof are not the only considerations before the Court. 43. Finally, the learned counsel further submits that the law prevailing in Assam and Meghalaya till the decision of the Apex Court in M/S SRD Nutrients (Supra) is that Education Cess and Secondary and Higher Education Cess were not exempted. However, pursuant to the judgment of M/S SRD Nutrients (Supra) the refunds were granted. However, in so far as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in SRD Nutrients (Supra). Pursuant to orders passed by this Court refunds were granted by the department following the Judgment of M/S SRD Nutrients Private Limited (supra). Much later, after the refunds were granted by the Department, the Apex Court while considering the same issue arising in a matter where the parties are similarly situated held in M/S Unicorn Industries Private Limited (supra), that the earlier Judgment of the Apex Court in M/S SRD Nutrients Private Limited (supra) to be per incuriam as the said Judgment was rendered without taking into consideration, the still earlier Judgments of the Apex Court in M/S Modi Rubber (supra) and M/S Rita Textile (supra) which had already taken a contrary view. In view of the judgment of the Apex court in M/S Unicorn Industries (supra) holding the Judgment of the Apex Court in M/S SRD Nutrients (supra) to be per incuriam , the department considered the refunds granted earlier to have been Erroneously granted and consequently the impugned Demand-cum-show cause notices were issued to the petitioners seeking recovery of the refunds of the Education Cess and Secondary and Higher Education Cess which were granted earlier to the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceipt of such information, shall not serve any notice under clause (a) of that sub-section in respect of the duty so paid or any penalty leviable under the provisions of this Act or the rules made thereunder. (3) Where the Central Excise Officer is of the opinion that the amount paid under clause (b) of sub-section (1) falls short of the amount actually payable, then, he shall proceed to issue the notice as provided for in clause (a) of that sub-section in respect of such amount which falls short of the amount actually payable in the manner specified under that subsection and the period of 89[two years] shall be computed from the date of receipt of information under sub-section (2). (4) Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, by the reason of- (a) fraud; or (b) collusion; or (c) any wilful misstatement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by any person chargeable with the duty, the Central Excise Officer shall, within five years from the relevant date, serve notice on such person requiri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction (1); (b) within 2[two years] from the date of notice, where it is possible to do so, in respect of cases falling under sub-section (4) 1[* * *]. (12) Where the appellate authority or tribunal or court modifies the amount of duty of excise determined by the Central Excise Officer under sub-section (10), then the amount of penalties and interest under this section shall stand modified accordingly, taking into account the amount of duty of excise so modified. (13) Where the amount as modified by the appellate authority or tribunal or court is more than the amount determined under sub-section (10) by the Central Excise Officer, the time within which the interest or penalty is payable under this Act shall be counted from the date of the order of the appellate authority or tribunal or court in respect of such increased amount. (14) Where an order determining the duty of excise is passed by the Central Excise Officer under this section, the person liable to pay the said duty of excise shall pay the amount so determined along with the interest due on such amount whether or not the amount of interest is specified separately. (15) The provisions of sub-sections (1) to (14) shall apply, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w. In the said judgment, it is held that an order cannot be term as erroneous unless it is not in accordance with law. It is held that if an officer acting in accordance with law makes certain assessment and determines the turnover of dealer, the same cannot be branded as erroneous. In another matter, the Division Bench of this Court in Victor Cane Industries vs. Commissioner of Taxes and ors, reported in 2001 SCC Online Gau 216 : (2002) 2 GLR 69, held that simply because the law has changed or earlier law laid down has been reversed, it would not entitle the revisional authority to reopen the earlier assessments. The relevant paragraphs of the judgment are extracted below: 10. It will be seen that this Court had taken the view after relying on earlier judgments of different High Courts as also observations of Supreme Court in India Aluminium Cable Ltd. case. No doubt the view of the Apex Court expressed in Pine Chemicals case, (1992) 2 SCC 683 was reversed by the Apex Court itself in (1995) 1 SCC 58, but according to us that should not make any difference on the assessments already completed. On similar matter a Division Bench of Punjab Haryana High Court in 107 STC 332 observed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the appellate authority that was set aside by the revisional authority as mentioned above was based upon the decision of the Tribunal, even though, therefore, the revisional authority was not reopening. The case decided by the Tribunal, it virtually amounts to upsetting an order that is based upon the decision of the Tribunal. 11. The matter can be looked from another angle also. This Court in. Mahavir Coke Industries v. Income Tax Commissioner; Assam, (1995) 97 STC 186 (Division Bench which judgment was pronounced on October 5, 1993 relying on earlier judgment of this Court ( 1992 (1) GLR 46) as well as Pine Chemical Limited Case, (1992) 2 SCC 683 (supra) took the view that industries like the appellant were exempt from the payment of Central Sales Tax U/S. 8(2A) of the Central Sales Tax Act. Against the aforesaid judgment the S.L.P. filed by the revenue was dismissed on 3.3.1997 (S.L.P. No. C 5644 of 1997). Thereafter the revenue filed a review petition No. 1370/97 before the Apex Court on the ground that the judgment reported in (1992) 2 SCC 683 (supra) already stood reviewed and reversed in the case reported in (1995) 1 SCC 58 and therefore the order passed in the S.L.P. d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as under:- 5. From the perusal of section 40 as reproduced above, it would be apparent that the Commissioner can call for the record of any case pending before or disposed of by any Assessing Authority or appellate authority to satisfy himself as to the legality or propriety of any proceedings or any order and pass such order in relation thereto as he may think fit. The scope of revisional powers is, thus, only to examine legality or propriety of any proceedings or any order. That being the scope of the revision, the only question that, thus, needs determination is as to whether the appellate authority while accepting the appeals preferred by M/s. Free Wheels (India) Limited as on the day when the appeals were decided had committed any illegality or the orders suffered from any impropriety. All that is stated on behalf of the counsel representing the State of Haryana is that the appellate authority had based its decision on the decision of the Tribunal in Liberty Footwear Co., Kamal, which decision could not be held to be laying down the correct law in view of the later decision rendered by the Tribunal in Steel Kraft, Panipat. We do not find any merit in the contention of the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 109 ITR 229 and the Allahabad High Court in K.N. Agrawal v. CIT, [1991] 189 ITR 769 have held that where the Income-tax Officer's order is passed on the basis of a binding decision, revisional power under section 263 cannot be exercised to undo the said order. The Income-tax Officer is a quasi-judicial authority and the principle laid down is sound. We endorse the same. 7. Either in section 80HH or in section 80J, there is no provision for withdrawal of special deduction for the subsequent years for breach of certain conditions. Hence unless the relief granted for the assessment year 1980 81 was withdrawn, the Income-tax Officer could not have with-held the relief for the subsequent years. [See Gujarat High Court decision in the case of Saurashtra Cement and Chemical Industries Ltd. v. CIT, [1980] 123 ITR 669]. 50. In G.M. Mittal Stainless Steel Pvt. Ltd. report in (2003) 11 SCC 441 , the Apex Court while dealing with the matter under Section 263 of the income tax act, 1961 held that the power of the commissioner under Section 263 must be exercised on the basis of the materials that was available to him when he exercised the power. The Apex Court held that the satisfaction of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nless the concerned departmental Officer is satisfied that the refund granted earlier was because of any or all of the conditions mentioned under sub-Section (4), the refunds cannot be treated to be erroneous. The mandate of section requires the departmental Officer to apply its mind and only upon satisfaction of the conditions mentioned under sub-Section (4) of Section 11A can any refund granted earlier be treated to have been erroneously. 53. The Department proceeded to issue, the impugned demand-cum-show cause notices on the premise that once the judgment on the basis of which the refunds were granted have been held to be per incuriam, the refunds sanctioned/granted earlier will become unavailable to the petitioners because of the change in law and, therefore, the same will be an erroneous refund enabling the Department to invoke its statutory powers under Section 11A read with Section 11AA of the Central Excise Act, 1944. What cannot be lost sight of is that the Department sanctioned the refunds demanded/claimed by the petitioners on the basis of the Judgment in SRD Nutrients without any demur. The contention of the departmental counsel that the refunds sanctioned become errone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which were granted by the Department were pursuant to judicial proceedings before the Apex Court and/or the Gauhati High Court, the refunds sanctioned/released were on the basis of orders passed by the Apex Court and/or the Gauhati High Court. Consequently, once a judgment or judicial order is passed by a Court of law against the Department, the remedy available to the Department is by way of an appeal to a higher Court or review. Since, the review filed before the Supreme Court were dismissed and since no further appeal and/or review was passed against the different orders passed by the Gauhati High Court , the lis between the parties, namely, the petitioners and the Department of Central Excise has attained finality in respect of the issues which are now sought to be reopened by way of the demand-cum-show cause notice impugned in the present proceedings. Such a procedure sought to be invoked by the Department is completely alien in law as established by the constitution as well as the law laid down by the Apex Court in a catena of judgments. 56. In this context, it will be relevant to refer to meaning ascribed to a judgment by the Apex Court :- 2. Generally speaking, a judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In this context the word decision means only the reason for the previous order and not the operative order in the previous decision, binding inter partes. Even if a previous decision is overruled by a larger Bench, the efficacy and binding nature, of the adjudication expressed in the operative order remains undisturbed inter partes. Even if the earlier decision of the Five-Judge Bench is per incuriam the operative part of the order cannot be interfered within the manner now sought to be done. That apart the Five-Judge Bench gave its reason. The reason, in our opinion, may or may not be sufficient. There is advertence to Section 7(1) of the 1952 Act and to the exclusive jurisdiction created thereunder. There is also reference to Section 407 of the Criminal Procedure Code. Can such a decision be characterised as one reached per incuriam? Indeed, Ranganath Misra, J. says this on the point: (para 105) Overruling when made by a larger Bench of an earlier decision of a smaller one is intended to take away the precedent value of the decision without effecting the binding effect of the decision in the particular case. Antulay, therefore, is not entitled to take advantage of the matter bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olving the same issue as an earlier year, the court can differ from the view expressed if the case is distinguishable or per incuriam. The decision in State of U.P. v. Union of India [(2003) 3 SCC 239] related to the year 1988. Admittedly, the present dispute relates to a subsequent period. Here a coordinate Bench has referred the matter to a larger Bench. This Bench being of superior strength, we can, if we so find, declare that the earlier decision does not represent the law. None of the decisions cited by the State of U.P. are authorities for the proposition that we cannot, in the circumstances of this case, do so. This preliminary objection of the State of U.P. is therefore rejected . 61. Again in the Special Reference No. 1 of 2012- Natural Resources Allocation reported in (2012) 10 SCC 1 held as under:- 48.1. The first limitation is that a decision of this Court can be reviewed only under Article 137 or a curative petition and in no other way. It was in this context that in para 85 of Cauvery (2) [1993 Supp (1) SCC 96 (2)], this Court had stated that the President can refer a question of law when this Court has not decided it. Mr. Harish Salve, learned Senior Counsel, is righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the law declared by M/S Unicorn Industries (Supra) will be applied prospectively, it must be accepted that it will have retrospective effect. If that interpretation is accepted then the law which was declared by the Apex Court earlier by the judgments of Modi Rubber(supra) and Rita Textile(supra) will continue to be applicable even at a time when the refunds were made by the Department following the judgment of the Apex Court in SRD Nutrients(supra). The contention of the respondents that in view of such position, there is no infirmity in treating the refunds already granted to have been erroneously granted and, therefore, the show cause notices issued by the Department under Section 11A of the Central Excise Act are inconsonance with law and should, therefore, not been interfered with as prayed for. The contentions urged by the Department, if accepted, will be self-defeating inasmuch as the refunds were granted earlier in terms of the Apex Court in M/S SRD Nutrients Private Limited (supra). From the pleadings, it is evident that even in the writ petitions filed before this Court, the Department accepted that the Apex Court in M/S SRD Nutrients Private Limited (supra) held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into service by the Department are also not applicable in the context of the present proceedings. Further in the context of the present proceedings, the Department did file a review petition in the case of Bajaj Auto Limited (supra) being Review Petition No. ___ of 2020 (Diary No. 13857/2020) which was preferred by the Department seeking review of the judgment rendered by the Apex Court in the case of Bajaj Auto Limited Vs- Union of India reported in 2019 SCC Online SC 421 in which matter similar orders were passed by the Apex Court as in the case of M/S SRD Nutrients Limited (supra) . It is submitted at the Bar that by order dated 01.09.2020 the Apex Court dismissed the application misc. application seeking condonation of delay of 148 days that had occurred in filing the said review petition. It is also submitted that a similar review petition in respect of M/S SRD Nutrients (supra) has also been filed and the same is pending before the Apex Court. No order passed by the Apex Court allowing or rejecting the said review petition has been brought before this Court till the date of hearing of these matters. In any view of the matter such orders that may be passed by the Apex Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application of Section 11A unless the requirements of sub-Section (4) of Section 11A are satisfied. This will amount to impeaching collaterally a finding rendered by a quasi judicial authority. The Apex Court in Abdul Kuddus reported in (2019) 6 SCC 604 has very succinctly laid down the law regarding impermissibility of collateral impeachment of orders passed by Quasi Judicial bodies. The relevant paragraphs of the Judgment is extracted as under:- 23. The procedure prescribed by the post 2012 amendment under the 1964 Order mandates compliance with the principles of natural justice. All the allegations and grounds are required to be served by the Tribunal in the form of a show-cause notice to the person who is alleged to be a foreigner [see para 60 in Sarbananda Sonowal (2) [Sarbananda Sonowal (2) v. Union of India, (2007) 1 SCC 174] ]. Thereupon, the person has to be given a reasonable opportunity to file representation and also produce evidence. The Tribunal has been authorised to consider and allow prayer for production and examination of the witnesses which can be refused if found to be vexatious, or made with the intent to cause delay, etc. The evidence produced by the Superin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Foreigners Tribunal and/or the consequential order passed by the Registering Authority would not operate as res judicata. Both the opinion of the Tribunal and the order of the Registering Authority result in determination of rights/status under the statute and by an authority after a contest on the merits which would necessarily operate as a bar to subsequent proceedings before the same authority for redetermination of the same issue/question. This Court in Ujjam Bai v. State of U.P. [Ujjam Bai v. State of U.P., AIR 1962 SC 1621] has held that the principles of res judicata equally apply to quasi-judicial bodies. Whenever a judicial or quasijudicial tribunal gives a finding on law or fact, its findings cannot be impeached collaterally or in a second round and are binding until reversed in appeal or by way of writ proceedings. The characteristic attribute of a judicial act or decision is that it binds, whether right or wrong. Thus, any error, either of fact or law, committed by such bodies cannot be controverted otherwise by way of an appeal or a writ unless the erroneous determination relates to the jurisdictional matter of that body. 25. In J.J. Merchant v. Shrinath Chaturve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oked co-laterally by a Quasi Judicial Authority of the Department without taking recourse to the statutory and/or judicial remedies available to the Department. In view of dismissal of the earlier review petition filed by the Department against the Judgment of the Apex Court in M/S SRD Nutrients Private Limited (supra) and also in view that no appeal or review having been preferred against orders of this Court directing entitlement of refund of Education Cess and Secondary and Higher Education Cess to the petitioners, the issue between the parties to the lis having attained finality, the later Judgment of the Apex Court in M/S Unicorn Industries (supra) holding M/S SRD Nutrients Private Limited (supra) to be per incuriam, will not permit the Department to unilaterally revoke or re-open the issue without taking recourse to the remedies available to them before a judicial forum. Such actions initiated by issuance of the impugned show cause notices, if permitted, will amount to revoking the earlier orders passed by the departmental officers exercising Quasi Judicial powers unilaterally and which action cannot be permitted in view of the law laid down by the Apex Court in Abdul Kuddus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is provided that the Central Board of Excise and Customs (CBEC) constituted under the Central Boards of Revenue Act may, if it considers it necessary or expedient so to do for the purpose of uniformity with respect to levy of duties of excise, issue such order, instructions and directions to the Central Excise Officers as it may deem fit and such Officers employed in the execution of this Act shall observe and follow such orders and directions issued by the Board. The Apex Court in Commissioner of Customs (Calcutta) Ors Vs. Indian Oil Corporation and Ors. reported in (2004) 3 SCC 488 laid down that such circulars issued under Section 37B are not binding on the assessee. However, it will not be open to the Revenue to raise a contention contrary to the circular issued by CBEC. When the circular remains in operation, the Revenue is bound by it and it cannot be allowed to take the plea that it is not valid or that it is contrary to the terms of the statute. The relevant paragraph of the judgment is extracted below:- 12. The principles laid down by all these decisions are: (1) Although a circular is not binding on a court or an assessee, it is not open to the Revenue to raise a conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Apex Court rendered in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Ors., reported in (1998) 8 SCC 1. The relevant paragraph of the judgment is extracted herein below: 14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for any other purpose . 15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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