Gauhati High Court
Calcom Cement India Limited vs The Union Of India And 4 Ors on 19 February, 2021
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GAHC010026902021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/973/2021
CALCOM CEMENT INDIA LIMITED
(CEMENT GRINDING UNIT) VILL. PIPALPUKHURI, P.O. LANKA, DIST.
NAGAON, ASSAM-788931, A COMPANY REGD. UNDER THE COMPANIES
ACT, 1956 HAVING ITS REGD. OFFICE AT 3RD AND 4TH FLOOR, ANIL
PLAZA II, ABC, G.S. ROAD, GUWAHATI-781005 ASSAM REP. BY SHRI
SANTOSH KUMAR PERIWAL, THE SENIOR GENERAL MANAGER (FINANCE
AND ACCOUNTS) OF THE PETITIONER COMPANY.
VERSUS
THE UNION OF INDIA AND 4 ORS
REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF
FINANCE, DEPTT. OF REVENUE, NORTH BLOCK, NEW DELHI-110001.
2:PRINCIPAL COMMISSIONER
CENTRAL GOODS AND SERVICE TAX
GST BHAWAN
KEDAR ROAD
FANCY BAZAR
GUWAHATI-781001.
3:ASSTT. COMMISSIONER
CENTRAL GOODS AND SERVICES TAX GUWAHATI-II DIVISION
GST BHAWAN
KEDAR ROAD
FANCY BAZAR
GUWAHATI-781001.
4:CENTRAL BOARD OF EXCISE AND CUSTOMS
REP. BY ITS CHAIRMAN
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MINISTRY OF FINANCE
DEPTT. OF REVENUE
BORTH BLOCK
NEW DELHI-110001.
5:THE AGM/BRANCH MANAGER
STATE BANK OF INDIA COMMERCIAL BRANCH
GUWAHATI
3RD FLOOR
SWAGOTA SQUARE
G.S. ROAD
GUWAHATI-781005
Advocate for the Petitioner : DR. A SARAF
Advocate for the Respondent : SC, GST
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
ORDER
Date : 19-02-2021
Heard Dr. A. Saraf, learned senior counsel for the petitioner. Also heard Mr. S.C. Keyal,
learned counsel for the GST department.
2. The petitioner company is engaged in a business manufacture of cement clinker and cement and
for the purpose the cement grinding factory is located at village Pipalpukhuri in the district of Nagaon,
Assam. In course of the manufacturing business, the petitioner company is subjected to the provisions
of the Central Excise Act, 1944 The petitioner company 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.
3. 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.
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4. 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.
5. 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 of
100% of the excise duties to be paid stood restored.
6. 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.
7. 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, two applications dated 02.02.2021 and 04.02.2021
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 attach the bank accounts of the petitioner 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
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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.
8. 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 two
applications of the petitioner dated 02.02.2021 and 04.02.2021 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 as
well as not to pursue with the communication dated 05.02.2021 made from the Office of the Assistant
Commissioner of GST Guwahati to the AGM/Branch Manager, State Bank of India.
9. 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.
JUDGE
Comparing Assistant
