High Court of Meghalaya
M/S Porla Ply Products vs . Union Of India & Ors on 5 May, 2022
Serial No. 01
Supplementary List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WP (C) No.162/2022
Date of Order: 05.05.2022
M/s Porla Ply Products Vs. Union of India & ors
Coram:
Hon'ble Mr. Justice Sanjib Banerjee, Chief Justice
Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner : Dr. A. Saraf, Sr.Adv
For the Respondents : Dr. N. Mozika, ASG with
Ms. S. Rumthao, Adv
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
This is another matter that pertains to the fixation of special rate
of value addition while assessing the Central excise component.
As noticed in some previous matters, by a notification of the year
2008, the previous practice of completely exempting the manufacturers
and service providers in the North-East from Central excise was altered to
exempting only the value addition part.
For such purpose, various kinds of goods were indicated in a
tabular form and fixed rates of value addition were assigned to the specific
products. A further clause in the notification provided that if, in course of
the manufacture of a particular product, the extent of value addition was in
excess of 115 per cent of the rate indicated in the table, a special
application could be carried to the jurisdictional Commissioner for
consideration of the matter by such official. However, a time limit was
indicated within which the application for special rate had to be made and
a proviso to the clause granted a limited extension of the time.
The notification of 2008 was challenged in various High Courts
and by an order passed in or about the year 2013, the Gauhati High Court
set aside the notification. A special leave petition from the Division Bench
order of the Gauhati High Court was admitted by the Supreme Court and
the operation of the order was stayed. It was, however, only in the year
2020 that the order of the Gauhati High Court setting aside the notification
was annulled and the notification was upheld.
During the period of flux and uncertainty, several manufacturers
could not avail of the opportunity to make the applications for the special
rate of value addition and the applications filed beyond the time specified
in the notification, the applications came to be rejected. One of the relevant
manufacturers carried a writ petition to this Court in the year 2021 which
was disposed of on the submission of the Central Excise authorities that
the application would be considered in accordance with law. Later,
however, the application was rejected merely on the ground of delay;
whereupon a second writ petition came to be instituted before this Court
and the same was allowed by an order of April 28, 2022 which required
the application to be dealt with on merits.
Though the special feature in such other matter may be absent in
the present case, the issue which arises is whether the time limit for the
relevant application as indicated in the notification of 2008 had to be
adhered to for the benefit thereunder being obtained despite the uncertainty
as to the validity of the notification for a number of years and the legal
position really being determined by the Supreme Court judgment on the
notification passed in the year 2020.
In this case, the relevant application has been rejected merely on
the ground of delay and without going into the merits of the claim. The
petitioning assessee also complains of coercive measures being adopted by
the respondent authorities.
Since the matter requires consideration as to whether the mere
delay to file the relevant application at a stage when there was considerable
uncertainty regarding the notification would take away the right, affidavits
are called for. Affidavits-in-opposition be filed within four weeks; reply
thereto, if any, may be filed within a fortnight thereafter.
The matter will appear eight weeks hence.
Till the present petition is decided, the respondent authorities
should not take any coercive measures against the petitioning assessee for
realisation of any amount on account of the Central excise claim pertaining
to the relevant product.
List on July 1, 2022.
(W. Diengdoh) (Sanjib Banerjee)
Judge Chief Justice
Meghalaya
05.05.2022
"Lam DR-PS"
