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TMI Blog2021 (9) TMI 1046X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the Northeastern Industrial Policy of 24.12.1997 had established a manufacturing unit within the Northeastern Region. As per the Northeastern Industrial Policy, the petitioner was earlier entitled to an exemption to excise duty to certain extent. 3. By the notifications No.17/2008-CE dated 27.03.2008 and No.31/2008-CE dated 10.06.2008, certain modification was brought in by the respondent authorities to the exemption that was made available to the petitioner under the North Eastern Industrial Policy. The validity and vires of the notifications by which such modification was brought in regarding the entitlement of exemption of excise duties was assailed by the petitioner and some other similarly aggrieved manufacturers by way of WP(C) No.1789/2008 and other writ petitions. 4. One of the ground for assailing the notifications was based on the doctrine of promissory estoppels. WP(C) No.1789/2008 was given a final consideration by the judgment dated 24.06.2009, by which the notifications impugned dated 27.03.2008 and 10.06.2008 were held to be not sustainable in law and were accordingly set aside and quashed. The intra-Court appeal that was carried against the judgment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.03.2008 and 10.06.2008 stood dismissed. The Supreme Court also clarified that the judgment shall not affect the amount of excise duties already refunded prior to the two impugned notifications providing for modification of excise duty exemption and such refunds are not to be reopened. It was also provided that the pending refund applications are to be decided as per the impugned notifications bringing in the modification. The implication of the judgment dated 22.04.2020 of the Supreme Court in Civil Appeal No. No.2256-2263 of 2020 arising out of SLP(C) No.28194-28201-2010 and other similar appeals would be that the excise exemption granted under the Northeastern Industrial Policy of 1997 which was earlier available would now be not available to the assessees. 8. In the resultant situation, there is also a requirement under the law for the assessees to refund the 50% amount that as was paid to them pursuant to the interim order dated 07.12.2015 of the Supreme Court. 9. In the aforesaid background, the petitioner relies upon a notification No.32/99-CE dated 18.07.1999, as amended, and notification No. 31/2008-CE dated 10.06.2008 which inter-alia provides that notwithstandi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l rate, but the same has not been given its consideration and without giving a due consideration to the claim for special rate made by the petitioners, the respondents now intend to attach the bank accounts of the petitioner on the premises that the refund of excise duty would be as per the rates provided in the Notification dated 27.03.2008. As the Notification dated 27.03.2008 provides for a legal right to the assessee to claim for a special rate to be fixed in the event of there being any add-ons to the goods manufactured, we are of the view that without an appropriate decision being taken on such claim for special rate, it would be inappropriate for the department to proceed against the petitioners as per the rates provided in the Notification dated 27.03.2008. 8. In view of the above, as agreed by the learned counsel for the parties, this petition stands disposed of by directing the Principal Commissioner of GST Guwahati to consider the aforesaid application of the petitioner dated 28.09.2020 claiming for a special rate to be fixed on the basis of the add-ons made to the goods manufactured. After arriving at the special rate, if any as per the order to be passed by the Princ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a stay of the judgment of the Division Bench in WA No.243/2009 would not mean that the notifications impugned therein became operational and that the petitioner assesse could have availed the exemption during the intervening period when the appeals were pending before the Supreme Court. The Principal Commissioner was also of the view that the orders of the Supreme Court and the High Court have not provided for any express or implied intention to stay the operation of the amended notification No.32/99-CE dated 19.07.1999. 15. We do not express any view on the said stand taken by the Principal Commissioner as regards the effect of the judgment of the Division Bench in the writ appeal concerned and the stay by the Supreme Court by the order dated 07.12.2015 on the said judgment. The issue before this Court is that whether under the notification No.32/99-CE dated 18.07.1999 as amended and the notification No. 31/2008-CE dated 10.06.2008 the manufacturers are entitled to have an option not to avail the rates specified in the tables contained in the notifications and whether they have a legal right to request the authorities for fixation of a special rate as per the actual value additio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld have been a determination of such special rate, the same would have remained ineffective and un-implementable till the Supreme Court had finally decided the issue which was done as per the judgment dated 22.04.2020 in Civil Appeal No.2256-2263 of 2020, and further the relevance of such determination would again depend on the outcome of the appeal that was pending before the Supreme Court. We have taken note of that immediately after the judgment dated 22.04.2020 in Civil Appeal No.2256-2263 of 2020, when the occasion had again arisen for the petitioner assessee to seek for fixation of a special rate in respect of the value addition to the manufactured goods for the purpose of payment of the excise duty, the application for such request was made within a period of five month, which is on 28.09.2020. From such point of view, it cannot be wholly said that the petitioner would now be prevented from claiming their legal right for fixation of a special rate to the value addition to the manufactured goods merely because such application was not made within 30th September of that given financial year to which the claim for fixation of the said rate pertains to. 19. In the peculi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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