Gauhati High Court
M/S Vision Metalik Company vs The Union Of India And 2 Ors on 31 March, 2021
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GAHC010060452021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2349/2021
M/S VISION METALIK COMPANY
A PARTNERSHIP FIRM FORMED UNDER THE PROVISIONS OF THE
PARTNERSHIP ACT, 1932, HAVING ITS PRINCIPAL PLACE OF BUSINESS AT
H.S. ROAD, DIBRUGARH, 786001 AND MANUFACTURING PREMISES AT
VILL. HINDU GAON, P.O. MOHANABARI, N.H 37, LAHOAL, DIBRUGARH,
PIN-786012, ASSAM, REP. BY ITS MANAGING PARTNER SRI NARENDRA
KUMAR SAHARIA, S/O. SATYANARAYAN SAHARIA, R/O. CHOTAGOLA,
A.T. ROAD, DIBRUGARH WEST, DIBRUGARH, ASSAM, PIN-786001.
VERSUS
THE UNION OF INDIA AND 2 ORS
THROUGH THE FINANCE SECRETARY, MINISTRY OF FINANCE TO THE
GOVT. OF INDIA, NORTH BLOCK, PARLIAMENT HOUSE, NEW DELHI-
110001.
2:COMMISSIONER OF CENTRAL GOODS AND SERVICE TAX AND
CENTRAL EXCISE
DIBRUGARH
MILAN NAGAR
F- LANE
P.O. C.R. BUILDING
DIBRUGARH
PIN-786003
ASSAM.
3:ASSISTANT COMMISSIONER
CGST DIBRUGARH DIVISION
CENTRAL GOODS AND SERVICE TAX AND CENTRAL EXCISE
DIBRUGARH
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C.R. BUILDING
P.O. C.R. BUILDING
DIBRUGARH
PIN-786003
Advocate for the Petitioner : MR. D SAHU
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
ORDER
Date : 31-03-2021
Heard Mr. D. Sahu, learned senior counsel for the petitioner. Also heard Mr. S.C. Keyal,
learned counsel for the respondent GST department and Mr. K. Gogoi, learned CGC for the
respondent No.1.
2. The petitioner company is engaged in a business manufacture of instant tea. In course of the
manufacturing business, the petitioner company is subjected to the provisions of the Central Excise
Act, 1944 bearing Registration Number AACCA6496MXM002. 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 of100% 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.
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
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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
NotificationNo.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-CentralExcise 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-CentralExcise dated
27.03.2008 was interfered meaning thereby that the Notification No.20/2008-CentralExcise 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 application dated 28.09.2020 under Clause3(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 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 Dibrugarh to consider the aforesaid
application of the petitioner dated 28.09.2020 claiming for a special rate to be fixed on the basis of the
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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 action be taken against the petitioner.
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.
10. Writ petition stands allowed to the extent indicated above.
JUDGE
Comparing Assistant
