9911796707
TMI Blog2023 (11) TMI 1072X X X X Extracts X X X X X X X X Extracts X X X X ..... e matters were adjourned on many dates, to await the outcome thereof. The matters before the Supreme Court were then disposed of vide order dated 04.07.2022, whereby the subsequent decision of the Supreme Court overruling M/S. SRD NUTRIENTS PRIVATE LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE GUWAHATI [ 2017 (11) TMI 655 - SUPREME COURT] in the case of M/S. UNICORN INDUSTRIES VERSUS UNION OF INDIA OTHERS [ 2019 (12) TMI 286 - SUPREME COURT] was held, to not have any bearing on past decisions, which attained finality. These writ petitions are disposed of, and accordingly the show-cause/demand/recovery notices appearing in all these connected writ petitions stand quashed and set aside. - HON BLE MR. JUSTICE H.S. THANGKHIEW, CH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ms. A. Pradhan, Adv. JUDGMENT: PER H.S. THANGKHIEW, CHIEF JUSTICE (ACTING) (ORAL) 1. These batch of writ petitions being identical and similar are being disposed of by this common order and judgment. The writ petitions have been filed challenging show-cause/demand/recovery notices issued by the respondent No. 4, directing for payment/return of the Cess and Secondary and Higher Secondary Cess along with interest, which had been refunded to the petitioners. The demand it appears was on the ground that the said refund was erroneous, and made on the basis of a direction of this Court dated 15.10.2018, following the decision of the Supreme Court dated 10.11.2017, passed in SRD Nutrients Pvt. Ltd. vs. Commissioner of Central Excise, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RDER Delay condoned. We have heard Mr. N. Venkataraman, learned ASG appearing for the petitioner(s) in extenso. He pointed out that this Court in the case of SRD Nutrients (P) Limited vs. CCE reported in (2018) 1 SCC 105, gave a ruling contrary to the judgment previously rendered by a three Judge Bench of this Court in the case of Modi Rubber Ltd. And Anr. vs. Union of India and Others reported in (1986) 4 SCC 66. In a subsequent decision namely, M/s Unicorn Industries vs. Union of India reported in (2020) 3 SCC 492 , the judgment passed in SRD Nutrients (P) Limited (supra) was overruled and it was held that the exemption from payment of excise duty under a notification granted would not exempt the payment of education cess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation is granted, there is no exemption from payment of education cess. Therefore, the assessee who had paid the excise duty and education cess was not entitled to a refund of the education cess which had been paid. Also where refund had been made pursuant to the judgment in M/s SRD Nutrients (P) Limited, was no longer valid. With regard to the reference order made on 27.09.2021 on a miscellaneous application filed by the Revenue seeking to undo the judgment in M/s SRD Nutrients (P) Limited which was overruled in the subsequent judgment of this Court in M/s Unicorn Industries (supra), the question is whether there was a need at all to refer the matter to a larger Bench. This is for two reasons: firstly, such an application could not h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome provision has been inserted to the Code of Civil Procedure. It states that once there is a subsequent judgment overruling an earlier judgment on a point of law, the earlier judgment cannot be reopened or reviewed on the basis of a subsequent judgment. The contention of the Revenue is that in view of the subsequent judgment of this Court in M/s Unicorn Industries, recoveries could be made from the assessees with regard to the refund of education cess made by the Department or if not paid by the assesses following the judgment in SRD Nutrients (P) Limited. In the above circumstances, appeals were filed before the High Court by the assessees. In the instant case, the High Court had raised the following question of law and answered it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n SRD Nutrients (P) Limited (supra) had attained finality and was binding on the parties thereto. Therefore, the subsequent decision of this Court overruling SRD Nutrients (P) Limited (supra) in the case of M/s Unicorn Industries cannot have a bearing on past decisions which had attained finality although they had followed SRD Nutrients (P) Limited (supra), which was subsequently overruled in M/s Unicorn Industries. Otherwise a pandora s box would be opened and there would be no end to litigation, which is against public policy. That is exactly what is sought to be done by the reference order dated 27.09.2021. When we read the reference order in light of the what has been discussed, we find that the reference order was unnecessary. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
