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TMI Blog2023 (3) TMI 800X X X X Extracts X X X X X X X X Extracts X X X X ..... yil Senior Panel Counsel COMMON ORDER A common order is passed in these two writ petitions since the issues to be decided are substantially one and the same. The parties who have been arrayed as respondents are also substantially the same in both writ petitions. 2. The array of party shall be referred to by name and as follows; the petitioner as petitioner, Government of Tamil Nadu, Highways Department Project Direction (A/c)/the Tamil Nadu Road Sector Project-II as TNRSP, Bharat Petroleum Corporation Limited as BPCL and the Principle Chief Commissioner of GST and Central Excise/Superintendent, Central Tax and Central Excise Petroleum Products Range as GST Authorities/Central Excise Authority/Department. 3. The petitioner is a contractor that had entered into an agreement with the TNRSP on 08.06.2015 for the upgradation of Malliyakarai- Rasipuram-Thiruchengode-Erode Road (SH 79) Km 0/000 to Km 30/600 and Km 51/400 to Km 71/300 on engineering, procurement & construction (EPC) basis. 4. The copy of the agreement, which is placed in the typed set is not complete and hence the tenure of the project is not available. However, parties agree that the project has been completed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnational organisation listed in the Annexure appended to this notification for use in a project that has been approved by the Government of India and financed (whether by a loan or a grant) by such an organisation, a certificate from such an organisation that the said goods are required for the execution of the said project and that the said project has duly been approved by the Government of India; or .......... (c) in case the said goods are intended to be supplied to a project financed (whether by a loan or a grant) by the World Bank, the Asian Development Bank or any international organisation, other than those listed in the Annexure, and (ii) if the said project has been approved by the Government of India for implementation by the Government of a State or a Union Territory, a certificate from the executive head of the Project Implementing Authority and countersigned by the Principal Secretary or the Secretary (Finance), as the case may be, in the concerned State Government or the Union Territory, that the said goods are required for the execution of the said project, and that the said project has duly been approved by the Government of India for implementation by the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties of the Central Excise Department in the premises of BPCL. 11. With the inspection, an audit objection was raised bringing to the notice of the BPCL that the grant of exemption in regard to supplies of HSD was incorrect. Recovery was made of a sum of Rs.1.88 crores (approx) towards additional excess duty for the period March 2016 to June 2017 along with interest of a sum of Rs.1.01 crore (approx) for the period up to 12.06.2020 being the date of payment made to the Excise Department by BPCL. Immediately thereupon, BPCL communicated the recovery to the petitioner. 12. However, and this forms the subject matter of WP.No.6412 of 2022, the demand for the period March 2016 up to 30.06.2017, is, in my considered view, contrary to law insofar as the impugned notification dated 30.06.2017 comes into effect only from 01.07.2017. To this end, the recovery of duty for any period prior to 01.07.2017 is held to be bad in law and shall be refunded to BPCL forthwith. 13. For this purpose, BPCL is permitted to appear before the office of the Central Excise Officer concerned on Friday, the 18th of November, 2022 at 10.30 a.m, without awaiting any further notice in this regard for a reconcili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on granting the rebate, would not have any placid or expressed approval in law. 21. In the present case, however, these facts do not arise for consideration as the exemption has been withdrawn only in 2017, having been in force from 28.08.1995 onwards. Thus, in light of the distinction as noted above, reliance of the petitioner on the case of Birla Corporation (supra) is of no avail. 22. In the case of Unicorn Industries (supra), the three Judge Bench of the Hon'ble Supreme Court considered the similar question as to whether the withdrawal of an exemption notification would result in the benefit of the argument of promissory estoppal being available to the petitioner. 23. Upon consideration of several judgments that have been rendered earlier, Kasinka Trading Vs. Union of India [1995 (1) SCC 274], Sales Tax Officer Vs. Shree Durga Oil Mills [1998 (1) SCC 572], Shree Durga Oil Mills vs. Sales Tax Officer [1989 (74) STC 10], Shrijee Sales Corporation Vs. Union of India [1997 (3) SCC 398], Motilal Padampat Sugar Mills Co. Ltd. Vs. State of U.P. [1979 (2) SCC 409], State of Rajasthan Vs. Mahaveer Oil Industries [1999 (4) SCC 357], Shree Sidhbali Steels Ltd., Vs. State of U.P. [2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion or reduction to the Contract Price, as the case may be, due to the Change in Law." 28. Thus, the parties are aware of a possibility of there being a change in law, pending the currency of the contract. This is supported by the fact that a public trade notice had been issued by the authorities bringing to the notice of the assessees concerned, reversal of the exemption. This would support the conclusion that the reversal of the exemption is a fact to be taken note of by the parties, going forward. 29. However, Article 19.17.1 does provide for the authorities to sit across a a table and decide the impact of such change in law. Learned Additional Advocate General appearing for TNRSP would attempt to argue that the impact would only be to the detriment of the petitioner and not to the TNSRP. 30. However, this is a matter of contract and hence, I desist from interpreting the terms of the contract as it would be more appropriate for the parties to do so. 31. Hence, the petitioner is permitted to make a representation before the TNRSP on its interpretation of the exemption notification and the consequent liability as well as who is to bear such resultant liability. Such representa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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