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TMI Blog2021 (8) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... addition to the manufactured goods. The dominant purpose of the two notifications i.e. amended notification No.32/99-CE dated 18.07.1999 and the notification No. 31/2008-CE dated 10.06.2008, is the bestowing of a legal right to the assessee to opt for the fixation of a special rate in respect of the value addition to a manufactured goods. The requirement that such applications are to be made not later than 30th day of September of the given financial year is a provision for streamlining the procedure for making such application and to avoid the situation where the process of making such applications would be a never ending matter. Where the necessity for making of a request for fixation of the special rate for the value addition to the manufactured goods may not have occasioned earlier, it is deeemed appropriate that the Principal Commissioner of GST, Guwahati decides the application of the petitioner on its own merit as regards the claim for fixation of a special rate to the value addition to the manufactured goods of the given financial year. The Principal Commissioner, GST, Guwahati is directed to consider the application of the petitioner dated 18.05.2020 seeking for fixa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge was upheld, meaning thereby that the interference with the notifications impugned was sustained. The respondents in the Union of India carried an appeal before the Supreme Court against the judgment in the writ appeal resulting in SLP No.11878/2015. In the said proceeding, the Supreme Court had passed an interim order dated 07.12.2015, wherein the following as extracted was provided:- 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. 5. In terms of the order dated 07.12.2015 of the Supreme Court, the respondent GST Department was required to release 50% of the amount that was due to the assessee during the pendency of the appeal before the Supreme Court. The said interim order was passed in an appeal by the Union of India against an assessee namely M/s Kamakhya Cosmetics and Pharmaceuticals and others. The Division Bench of this Court in Raj Coke Industries vs- Union of India, reported in 2017 (349) ELT 120 (G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... table and instead apply to the Commissioner of Central Excise or the Commissioner of Customs and Central Excise, as the case may be, having jurisdiction over the manufacturing unit of the manufacturer, for fixation of a special rate representing the actual value addition in respect of any goods manufactured and cleared under the said notifications. 10. The implication of the said provision would be that irrespective of the rates prescribed in the aforesaid two notifications, the manufacturer is provided a further option not to avail the rate specified in the tables contained in the two notifications, but to apply to the Commissioner of Central Excise or the Commissioner of Customs and Central Excise, as the case may be having jurisdiction over the manufacturing unit of the manufacturer for fixation of a special rate representing the actual value addition. The time provided for filing such application for fixing of the special rate is provided in the notifications itself to be 30th September of that given financial year. 11. In the instant case, the petitioner had submitted an application on 18.05.2020 before the Commissioner of Central Excise and GST, Guwahati making a reque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the petitioner pursuant to the communication impugned dated 18.02.2021. 12. From paragraph 7 of the order dated 24.03.2021, it transpires that the issue involved in the said writ petition was that the respondents intended to attach the bank account of the petitioner on the premises that the refund of the excise duties shall be as per the notification dated 27.03.2008, without considering the legal right of the petitioner assessee for fixation of a special rate for the value addition to the goods manufactured. In the circumstance, it was an agreed order between the petitioner and the respondents in the GST Department requiring the Principal Commissioner of GST, Guwahati to consider the aforesaid application of the petitioner dated 18.05.2020 claiming for a special rate to be fixed on the basis of the value addition made to the goods manufactured. 13. In response to the order dated 24.03.2021 in WP(C) No.1644/2021, the order dated 23.06.2021 was passed by the Principal Commissioner, GST, Guwahati. In the order dated 23.06.2021, the Principal Commissioner, GST, Guwahati came to his conclusion in paragraph 4.11 thereof, which is extracted below:- The matter can b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is made. 16. In the instant case, it is the case of the petitioner that the requirement of requesting for fixation of a special rate in respect of the value addition to the manufactured goods had arisen only after the final judgment of the Supreme Court on 20.04.2020, inasmuch, as long as the matter was pending before the Supreme Court and the interim order dated 07.12.2015 was in operation requiring a refund of 50% of the amount involved, no occasion had arisen for the assessee to claim for the fixation of a special rate in respect of the value addition to the manufactured goods. The dominant purpose of the two notifications i.e. amended notification No.32/99-CE dated 18.07.1999 and the notification No. 31/2008-CE dated 10.06.2008, is the bestowing of a legal right to the assessee to opt for the fixation of a special rate in respect of the value addition to a manufactured goods. The requirement that such applications are to be made not later than 30th day of September of the given financial year is a provision for streamlining the procedure for making such application and to avoid the situation where the process of making such applications would be a never ending matter. 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Commissioner of GST, Guwahati decides the application of the petitioner dated 18.05.2020 on its own merit as regards the claim for fixation of a special rate to the value addition to the manufactured goods of the given financial year. We also take note of that in the earlier order dated 24.03.2021 in WP(C) No.1644/2021, it was an agreed stand of the respondent GST Department that the application of the petitioner requesting for fixation of a special rate on the value addition to the manufactured goods would be considered and the possibility that the application would be rejected on the ground of it having not been submitted prior to 30th September of that given financial year was not raised when the said order was passed by the Court. 20. If any such apprehension would have been expressed, the matter possibly would have been decided in the earlier writ petition itself. From such point of view also, on the principle of constructive res-judicata, the ground for rejecting such application for the reason that it was not submitted within 30th September of the given financial year would perhaps be not available for the respondent authorities for rejecting the application. 21. In ..... 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