Brahmaputra Udyog Pvt Ltd And Anr vs Union Of India And 4 Ors

Heard Ms. M. Hazarika, learned senior counsel assisted by Mr. D. Khan, learned counsel for the petitioner. Also heard Ms. P. Das, learned

counsel for the GST department.

The petitioners are engaged in a business of manufacturing of UPVC Pipes, fittings etc., having its registered Office at Panbazar, Guwahati. In

course of the manufacturing business, the petitioners is subjected to the provisions of the Central Excise Act, 1944 The petitioners also claimed some

benefits under the Northeast Industrial Policy for which, certain exemptions are made in respect of excise duties that are payable under the said Act.

The procedure adopted for grant of exemption is that the assesee first pays the excise duty and thereafter for the purpose of exemption the duty

paid stands refunded. Initially the refund was made to the extent of 100% of the payment of the excise duty. The respondents had issued the

Notification No.20/2008-Central Excise dated 27.03.2008 by which it was provided that instead of 100% refund of the excise duty paid, the refund

would be subjected to the rates provided in the said notification in respect of the different categories of goods as are provided therein.

Clause 3(1) of the Notification No.20/2008- Central Excise dated 27.03.2008 provides that notwithstanding anything contained in the said

notification the manufacturer shall have the option not to avail the rates specified in the Table provided in the said Notification and 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 notification, if the manufacturer finds that fourth-fifths of the ratio of actual value addition in the production or manufacture of the said goods to the

value of the said goods, is more than the rate specified in the said Table contained in the notification.

We take note of that at this stage by invoking the provisions of Clause 3(1) of the Notification No.20/2008-Central Excise dated 27.03.2008 the

petitioner company had made an application claiming that they had made certain add-ons to the goods manufactured by them and therefore claim for a

special rate as provided in the said provision. In the meantime, the Notification No.20/2008-Central Excise dated 27.03.2008 was assailed in a series

of writ petitions before this Court as well as in the other High Courts also. This Court by its judgment in the relevant writ petition had set aside the

Notification No.20/2008-Central Excise dated 27.03.2008 which led to the situation that the refund of100% of the excise duties to be paid stood

restored.

On an appeal being carried before the Supreme Court by the Department against such judgment of the High Courts, the judgment in the Union of

India and Others., -vs- V.V.P. Limited & Others was passed which is reported in 2020 SCC Online SC 378. By the said judgment of the Supreme

Court, the judgments of the High Courts interfering with the Notification No.20/2008-Central Excise dated 27.03.2008 was interfered meaning thereby

that the Notification No.20/2008-Central Excise dated 27.03.2008 stood restored.

This petition is instituted on the grievance that the Notification dated 27.03.2008 having been restored as per the judgment

of the Supreme Court, an application dated 03.04.2021 under Clause 3(1) of the Notification No.20/2008-Central Excise dated 27.03.2008 was

submitted by the petitioner claiming for a special 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 make recovery 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.

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 03.04.2021 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 Principal Commissioner, GST

further process against the petitioner as per law may be initiated. Till such decision is taken, no coercive measure be taken against the petitioner for

recovery of refund as well as not to pursue with the communication dated 15.03.2021 made from the Office of the Assistant Commissioner of GST.

The Principal Commissioner of GST shall do the needful as indicated above within a period of 6(six) weeks from the date of receipt of the certified

copy of the order.

Writ petition stands allowed to the extent indicated above.