m/s. dharampal satyapal ltd.

38 Pages·2015·0.34 MB·English

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 4458-4459 OF 2015
(ARISING OUT OF SLP (C) NOS. 37108-37109 OF 2012)
M/S. DHARAMPAL SATYAPAL LTD. .....APPELLANT(S)
VERSUS
DEPUTY COMMISSIONER OF CENTRAL .....RESPONDENT(S)
EXCISE, GAUHATI & ORS.
J U D G M E N T
A.K. SIKRI, J.
Leave granted.
2) Union of India, vide Memorandum dated December 24, 1997,
unveiled a new industrial policy for the North-Eastern region. In
the said policy, in order to give stimulation to the development of
industrial infrastructure in the North-Eastern region, the said
region was made tax free zone for a period of ten years giving
incentives to those who wanted to establish industries in that
region. Pursuant thereto, the Notification dated July 08, 1999 was
issued granting new industrial units that had commercial
production on or after December 24, 1997 and certain types of
industrial units that increased their installed capacity after that
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date, exemption on goods cleared from units located in growth
centres and integrated infrastructure centres.
3) The aforesaid Notification was issued under the provision of
Central Excise Act, 1944 as well as Additional Duties of Excise
(Goods of Special Importance) Act, 1957 and Additional Duties of
Excise (Textiles and Textile Articles) Act, 1978. However, on
December 31, 1999, another Notification was issued whereby
exemption of central excise was withdrawn in respect of goods
falling under Chapter 21.06 (pan masala) and Chapter 24
(tobacco and tobacco substitutes, including cigarettes, chewing
tobacco etc.).
4) This withdrawal Notification was challenged by the appellant by
filing the writ petition in the High Court of Gauhati. The learned
Single Judge dismissed the writ petition. However, appeal
preferred by the appellant was allowed by the Division Bench vide
judgment dated December 03, 2012. In nutshell, the High Court
held that the principal of Promissory Estoppel shall apply and
once a promise was given by the Union of India assuring that no
such duty would be charged for a period of ten years, it was not
open for the Union of India to withdraw the same. Challenging
that judgment, Union of India filed petitions for special leave.
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Leave was granted and the petitions were registered as Civil
Appeal Nos. 8841-8844 of 2003.
5) After the filing of the aforesaid appeals, certain subsequent
events took place. It so happened that vide Section 154 of the
Finance Act, 2003 (hereinafter referred to as the 'Act of 2003'),
withdrawal of the benefit was effected from retrospective effect.
Effect thereof was to withdraw the benefit given under the
Notification issued earlier. Validity of Section 154 was questioned
and the issue was considered by this Court in R.C. Tobacco
Private Ltd. & Anr. v. Union of India & Anr.1 This Court upheld
the constitutional validity of the aforesaid provision and repelled
the challenge so laid. The effect was to disentitle the appellant
and other similarly situated from getting any such benefit by virtue
of Section 154 of the Act of 2003 and knocking down the basis of
the judgment of the High Court, which lost its validity on the
aforesaid ground.
6) So far so good. The grievance of the appellant and other similarly
situated industries for not extending the benefit of Notification
dated July 08, 1999 is buried down. However, after notifying
Section 154 of the Act of 2003, which had nullified the effect of
1
(2005) 7 SCC 725
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Notification No. 32 of 1999 retrospectively thereby annulling the
effect thereof altogether, respondent No.1 herein passed recovery
order dated June 03, 2003 for recovery of a sum of ₹2,93,43,244
(rupees two crores ninety three lakhs forty three thousand two
hundred and forty four only) from the appellant, which was the
benefit that had been drawn by the appellant for the period
November 1999 till February 2001 in terms of the Notification No.
32 of 1999. By another order dated June 06, 2003 issued by
respondent No.1, the appellant was directed to pay the excise
duty for the said period for which the benefit had been availed.
He also rejected the pending claim of refund for the period from
March 2001 till May 31, 2003. These recovery orders were
challenged by the appellant by filing appeal before the
Commissioner (Appeals). Along with the appeal, the appellant
also filed an application for interim order seeking stay against the
pre-deposit. On this application, orders dated March 31, 2004
were passed by the Commissioner (Appeals) directing the
appellant to deposit entire duty amount within a period of thirty
days. This order of pre-deposit was challenged by the appellant
by filing four writ petitions in the High Court of Gauhati. The
learned Single Judge of the High Court, however, dismissed these
writ petitions vide orders dated May 18, 2004. The appellant
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carried this issue of pre-deposit to a higher forum in the form of
writ appeals before the Division Bench of the said Court. Interim
orders dated June 11, 2004 were passed in the writ appeals
directing the Commissioner (Appeals) not to dismiss the appeals
preferred by the appellant before him for non-deposit of the duty
amount. In other words, interim stay against the pre-deposit was
given. The Commissioner (Appeals) heard the appeals and
passed the orders dated June 15, 2005 deciding the appeals in
favour of the appellant. He held that issuance of show-cause
notice was mandatory before a valid recovery of demand could be
made from the appellant and, thus, remitted the matter to the
adjudicating authority. After this final order was passed by the
Commissioner (Appeals), writ appeals of the appellant before the
Division Bench were disposed of as infructuous in view of the fact
that the Commissioner (Appeals) had passed an order on merits
and, therefore, no cause survived which required further
adjudication in those appeals.
7) Insofar as the order of the Commissioner (Appeals) is concerned,
both the appellant as well as the Revenue felt aggrieved thereby.
The appellant was not satisfied with the order of remand and the
nature of relief granted even after accepting that issuance of
show-cause notice was mandatory before passing a valid
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recovery of demand. The respondents were aggrieved of the
order passed on merit holding that show-cause notice was
mandatory. Therefore, both the appellant as well as the Revenue
filed appeals aggrieved against the order dated June 15, 2005
passed by the Commissioner (Appeals). The Customs Excise &
Service Tax Appellate Tribunal (for short 'CESTAT') decided these
appeals vide common order dated My 28, 2007. It reversed the
orders of the Commissioner (Appeals), which resulted in allowing
the appeal filed by the Revenue and dismissing the appeal
preferred by the appellant. A perusal of the judgment of the
CESTAT would reveal that it has primarily referred to the
judgment of this Court in R.C. Tobacco and held that the matter
stood concluded by the said judgment. The appellant challenged
the order of CESTAT by filing Central Excise Tax Reference No. 1
of 2008 before the High Court of Gauhati. This Reference was
dismissed by the High Court on December 01, 2011 on the
ground of res judicata holding that orders dated May 18, 2004
passed by the Single Judge dismissing the writ petitions of the
appellant had attained finality. The appellant preferred Review
Petition seeking review of the said order, which has also been
dismissed by the High Court on June 05, 2012. In the present
appeals, the appellant has challenged both the orders dated
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December 01, 2011 passed in the Tax Reference as well as the
order dated June 05, 2012 passed in the Review Petition.
8) From the brief narration of the background facts mentioned
above, it is apparent that the frontal attack of the appellant against
the recovery orders passed by the respondents is premised on
the plea that no such recovery proceedings could be initiated
without a show-cause notice under Section 11-A of the Excise Act.
The appellant has also taken a plea in these appeals that order of
the Single Judge at pre-deposit stage could not operate as res
judicata on merits and, therefore, dismissal of the Tax Reference
by the High Court, and consequently the Review Petition, is
clearly erroneous and the High Court should have gone into the
merits of the issue decided by CESTAT.
9) As noted above, CESTAT has decided the case against the
appellant on the ground that issue now raised is covered by the
judgment of this Court in R.C. Tobacco (supra). As pointed out,
in R.C. Tobacco (supra), this Court has already upheld the
validity of Section 154 of the Act of 2003 thereby taking away the
benefit of Notification No. 32 of 1999 retrospectively insofar as
excisable goods falling under Chapter 24 are concerned.
Conscious of the position that judgment in R.C. Tobacco (supra)
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stares at the face of the appellant, Mr. Soli Sorabjee, learned
senior counsel who appeared for the appellant, has also made an
endeavour to show that the said judgment in R.C. Tobacco
(supra) is in clear conflict with earlier three Judge Bench judgment
of this Court in M/s. J.K. Cotton Spinning and Weaving Mills
Ltd. v. Union of India2. Thus, following three issues have arisen
for consideration in these appeals:
(a) Whether order of the Single Judge at pre-deposit stage
can operate as res judicata on merits?
(b) Whether recovery proceedings can be initiated without
show-cause notice under Section 11A of the Excise Act,
which is mandatory?
(c) Whether there is a conflict between the three Judge
Bench judgment in J.K. Cotton (supra) and R.C.
Tobacco (supra)?
First issue is the basis for the judgment of the High Court.
10) For answering this issue, it would be necessary to take into
account the complete implication thereof with reference to the
nature of recovery orders passed by respondent No.1, challenge
thereto before the Commissioner (Appeals) and interim order of
pre-deposit passed by the Commissioner (Appeals) on March 31,
2004 as also the nature of challenge which was laid by the
2 (1987) Supp SCC 350
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appellant against the said order of pre-deposit in the writ petitions
filed in the High Court, which were dismissed by the learned
Single Judge on May 18, 2004.
11) By virtue of Notification dated July 08, 1999, the appellant was
granted refund of the duty deposited in cash up to February 2001.
After the enactment of Section 154 of the Act of 2003, recovery
order dated June 03, 2003 was passed for recovery of the
aforesaid amount which had been refunded to the appellant.
Simultaneously, another order dated June 06, 2003 was issued
asking the appellant to pay duty on the ground that such goods
were no more exempted from payment of duty. In the appeals
which were filed by the appellants before the Commissioner
(Appeals) challenging the aforesaid orders, the Commissioner
passed interim orders dated March 31, 2004 directing the
appellants to pay the amount demanded by the aforesaid orders.
This order dated March 31, 2004 of the Commissioner (Appeals)
reflects that the Commissioner went into various issues raised by
the appellant on the basis of which it was pleaded by the
appellant that it had a good case on merits and, therefore,
condition of pre-deposit be waived. Apart from the contention that
no show-cause notice was given before passing those orders, it
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was even argued that by making the retrospective amendment in
the form of Section 154 of the Act of 2003, the only effect was to
validate the earlier actions but no demand of refund of any
amount could be made and no refund of the amount already paid
could be claimed. It was also argued that the matter of recovery
of amounts was pending consideration of Central Board of Excise
and Customs (CBEC) as well as in the Gauhati High Court. All
these issues were considered by the Commissioner (Appeals),
who gave his prima facie view thereupon observing that the
appellants did not have strong prima facie case on merits
resulting into the direction to deposit the entire amount within
thirty days.
12) The appellant had filed writ petitions against the aforesaid order of
the Commissioner (Appeals) with the prayer that the direction of
the Commissioner (Appeals) to deposit the entire amount within
thirty days be set aside and the prayer of pre-deposit of the
appellant be accepted. No doubt, while arguing for this relief, the
appellant had raised various contentions on the merits of the case
in its endeavour to demonstrate that it had a good case on merits.
It is also borne from the record that the learned Single Judge,
while dismissing the writ petition, dealt with these issues, which
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