9911796707
TMI Blog2024 (9) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... ing regard to the fact that the entitlement of the petitioner to refund as per the excise notification of 19 of 2008 read with notification No. 34 of 2008 is not disputed, a liberal approach in the matter of condonation of delay is called for. Ordinarily, the petitioner, with a view to taking benefit of exemptions under the amending notifications of 2008, should have made applications seeking fixation of special rates as was provided in the amending notifications immediately after the judgment of Supreme Court in VVF Ltd s case [ 2020 (4) TMI 885 - SC ORDER ]. For two years, it could not do so because of pandemic and up to September 2022, he was entitled to apply for as provided under the notifications itself. There is also a provision for condonation of delay in the notifications for a period of one month. Once the respondents do not dispute the eligibility of the petitioner to claim refund of excise duty in terms of amending notifications of 2008, it would be travesty of justice if the claim of the petitioner is thrown out on the technical ground of delay - this is a fit case for exercise of extraordinary writ jurisdiction under Article 226 of the Constitution and direct the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notification No. 19/2008-CE dated 27.03.2008, the exemption notification issued in the year 2002 was amended and refund of excise duty was restricted to the duty payable on value addition undertaken in the manufacture of the goods. A table was introduced in the original notification containing a rate of value addition for different goods. Furthermore, in terms of clause 2.1 of the Notification dated 27.03.2008, the manufacturer was given an option not to avail the rates specified in the table and apply to the Commissioner for fixation of a special rate representing the actual value addition in respect of goods manufactured and cleared under the Notification. The notification dated 10.06.2008 clearly provided that such an application seeking fixation of special rates must be filed by the manufacturer prior to 30th of September in a particular financial year. The notification No. 19/2008-CE dated 27.03.2008 and notification No. 34/2008-CE dated 10.06.2008 were subject matter of challenge in various writ petitions filed by the aggrieved assessee before this Court. 3. A single Bench of this Court vide its judgment rendered in Reckitt Benckiser vs Union of India, 2011 (269) ELT 194 (J K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... true that, in terms of excise notification No. 19/2008 dated 27.3.2008 read with Notification No. 34/2008-CE dated 10.06.2008 the exemptions were curtailed and restricted only to the extent of value addition. This notification was immediately challenged before this Court and, therefore, remained eclipsed till the matter was finally decided by the Supreme Court on 22.04.2020 in Reckitt Benckiser s case (supra). Rightly, as is contended by the petitioner, it could not have applied for fixation of special rates as provided under the Excise Notification of 2008 which was subject matter of challenge in various writ petitions and had been stayed by a Single Bench of this Court. It, therefore, made applications for refund under the excise notification of 2002, the details whereof are given in para (3) of the impugned order. It is also not disputed before this Court that at the time when the Supreme Court settled the matter with regard to exemptions in VVF Ltd s case (supra), covid-19 pandemic had engulfed the entire country. 7. Taking note of the situation created by continuous lockdown in the country in view of covid-19 pandemic, the Supreme Court directed all the authorities to exclude ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld have been justified to dismiss the application. The Commissioner has not gone into that aspect of the matter and has even brushed aside the contention of the petitioner that it was entitled to exclude the period between 15.03.2020 to 28.02.2022 and has held the applications filed by the petitioner barred by inordinate delay and laches. Respondent No. 2 has found the applications delayed by two years and eight months reckoned from the date of decision of the Supreme Court in the case of VVF Ltd. s case (supra). 8. So far as the conclusion drawn by the Commissioner that the applications were delayed by two years and eight months is concerned, the same is factually incorrect. The Commissioner has not taken note of the fact that the period between 15.03.2020 to 28.02.2022 was required to be excluded in terms of the directions issued by the Supreme Court in reference to Covid-19 pandemic. 9. Viewed from afore-stated position, it is clearly deducible that the petitioner was indeed late for filing applications seeking fixation of special rates and this delay was only to the extent of 27 days only. Ordinarily, when a statute or a notification creating rights and liabilities prescribes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notifications itself. There is also a provision for condonation of delay in the notifications for a period of one month. As held above, and is reiterated here that the applications filed by the petitioner were delayed by 27 days only. The applications dated 27.12.2022 filed by the petitioner in the given circumstances can be said to be the applications filed in continuation with the applications for refund filed in the year 2012 and 2013. The refund applications were already with respondent No. 2 and the two applications which were filed on 27.12.2022 were only for seeking a different mode of computing/determining the excise duty refund payable to the petitioner. Viewed thus, it cannot be said that the applications filed by the petitioner were beyond time. 12. We have also taken note of the fact that it is not the case of the respondents that the petitioner is not entitled to any refund, but it is being shown the door only on the ground that the applications are belated. Once the respondents do not dispute the eligibility of the petitioner to claim refund of excise duty in terms of amending notifications of 2008, it would be travesty of justice if the claim of the petitioner is thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 2012 itself and made the applications on 27.12.2022 only seeking determination of refund of excise duty in terms of excise notifications of 2008 which were upheld by the Supreme Court in VVF Ltd. s case (supra) on 22.04.2020 only. As a result of this total non-application of mind on the part of the Commissioner, there was a serious miscarriage of justice. That apart, this Court had already decided two petitions on the similar grounds and, therefore, we are of the considered view that relegating the petitioner to alternative remedy would be subjecting the petitioner to uncalled for discrimination. The petitioner needs to be treated at par with the petitioners of WP (C)s No. 1844/2021 and 2520/2022 (supra). 14. In the premises, this petition is allowed. The impugned order dated 02.02.2023 passed by respondent No. 2 is quashed. Respondent No. 2 is directed to treat the applications dated 27.12.2022 filed by the petitioner in time and pass fresh orders on merits. We make it clear that we have not given our opinion on merits of the claim of the petitioner. WP (C) No. 1577/2023 WP (C ) No. 2044/2023 15. The judgment passed in WP(C) No. 2045/2023 hereinabove shall also govern the dispos ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
