Food Corporation Of India v. Stae Of Haryana Another Reports Of Saltes Tax Cases Volume

For approval and signature: Honble Dr. Chittaranjan Satapathy, Technical Member Honble Shri D.N.Panda, Judicial Member 1.Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? : Yes 2.Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? : Yes 3.Whether Their Lordships wish to see the fair copy of the Order? : Seen 4.Whether Order is to be circulated to the Departmental Authorities? : Yes =================================================================================== 1-4) COMMISSIONER OF CENTRAL EXCISE, SHILLONG APPELLANT COMMISSIONER VERSUS M/S. DHARAMPAL SATYAPAL LTD. M/S. DHARAMPAL SATYAPAL LTD. M/S. SATYAPAL SHIVKUMAR LTD. M/S. DHARAMPAL PREMCHAND LTD. RESPONDENTS

5) M/S. SATYAPAL SHIVKUMAR

6) M/S. DHARAMPAL SATYAPAL LTD., UNIT-II

7) M/S. DHARAMPAL SATYAPAL LTD.

8) M/S. DHARAMPAL SATYAPAL LTD., UNIT-I

9) M/S. DHARAMPAL PREMCHAND LTD. APPELLANT (S) VERSUS COMMISSIONER OF CENTRAL EXCISE, SHILLONG RESPONDENT COMMISISONER APPEARANCE: SHRI A.HORE, J.D.R. FOR THE APPELLANT COMMISSIONER AND VICE-VERSA AT SL. NOs.1 & 5-9 AND SHRI R.K.CHOWDHURY, ADVOCATE ASSISTED BY SHRI B.N.PAL, ADVOCATE FOR THE APPELLANT COMMISSIONER AT SL.NOs.2-4; SHRI A.MADHAV RAO, ADVOCATE FOR THE RESPONDENTS AT SL.NOs.1-4 AND FOR THE APPELLANTS AT SL.NOs.5-9. CORAM: HONBLE DR. CHITTARANJAN SATAPATHY, TECHNICAL MEMBER HONBLE SHRI D.N.PANDA, JUDICIAL MEMBER DATE OF HEARING/DECISION: 28.5.07 Per DR. CHITTARANJAN SATAPATHY Heard both sides at length in respect of these nine appeals, four of which have been filed by the Department and five of them have been filed by M/s. Dharampal and Satyapal Ltd. and others. We find that the impugned Orders-in-Original has been passed by the Original Authorities subsequent to and in pursuance of the amendments made in Section 154 of the Finance Act, 2003 retrospectively. The Appellate Authority vide his Orders dated 24.6.2004 and 15.6.2005 has set aside the impugned Orders and has remanded the matter to the adjudicating authority with direction to pass Orders in accordance with law. The learned Advocate, Shri R.K.Chowdhury for the Department states that the Remand Order is bad as the Original Authorities have passed correct Orders in accordance with the law. He also draws our attention to the Honble Supreme Courts Order in the case of R.C.Tobacco Pvt. Ltd. vs. Union of India 2005 (188) ELT 129 (SC) and states that no show cause notice was required to be issued in this case in terms of the said Order of the Honble Supreme Court, and the lower Appellate Authority is not correct in not upholding the Orders-in-Original.

2. Shri A.Madhav Rao, learned Advocate appearing for the respondents and vice versa, does not challenge the duty-liability, but states that interest is not payble for the entire period in view of the Order-in-Appeal subsisting in favour of the appellants. He also states that where the refunds have been granted after finalisation of assessment, the same is not required to be paid back as no appeals have been preferred by the Department against the same. In support of his argument, he cites the following decisions:- (a) CCE, Meerut vs. Rama Vision Ltd. 2005 (181) ELT 201 (SC); (b) CCE, Hyderabad vs. Associated Cement Companies Ltd. 2005 (180) ELT 3 (SC); (c) Food Corporation of India vs. Stae of Haryana & Another Reports of Saltes Tax Cases Volume 119, 2000.

3. After hearing both sides and perusal of the case records including the cited case laws, we find that the decision of the Honble Supreme Court in the case of R.C.Tobacco Pvt. Ltd. (cited supra) squarely covers the issue at hand. In the said case, the very same impunged Notification No.32/99-CE and its retrospective amendment in respect of the impugned goods have been considered by the Honble Supreme Court. The constitutional validity of such retrospective amendment has been upheld as also the other provisions introduced by Section 154 of the Finance Act, 2003 including the provisions regarding non-maintainability of appeals before the Appellate Authority have been upheld. Since the said decision has been rendered at a later point of time, apart from being directly related to the Notification and the issues at hand, we are of the view that the ratio of the said decision is applicable to the present case. The argument by the learned Counsel, Shri Rao that the earlier decisions in the case of Rama Vision (cited supra), Associated Cement Companies (cited supra) and Food Corporation of India (cited supra) lead to a different conclusion, is not tenable in the light of the latest decision of the Honble Supreme Court in the case of R.C.Tobacco Pvt. Ltd. (cited supra). We also do not find any support in any of the decisions of the Honble Supreme Court cited above, to conclude that in the cases where refund has been allowed after finalisation of assessment, the demands pursuant to the retrospective amendment cannot be sustained. We further find that it is not possible to conclude from this cited judgements that interest is not payable from the daty specified in view of the retrospective amendment.

3. In view of our findings above, we are of the view that the lower Appellate Authority was not justified in allowing the appeals and setting aside the Order-in-Original, particularly in the light of the specific provision regarding non-maintainability of appeal contained in Section 154(3) of the Finance Act, 2003 and the Honble Supreme Courts decision in the case of R.C.Tobacco (cited supra).

4. Accordingly, we set aside the impugned Order-in-Appeal and allow the appeals filed by the Department by restoring the Order-in-Original. The appeals filed by M/s. Dharampal and Satyapal Ltd. are dismissed. (Operative part of the Order was pronounced in the court on 28.5.2007) Sd/-30.5.07 Sd/30.5.07 (D. N. PANDA) (CHITTARANJAN SATAPATHY) JUDICIAL MEMBER TECHNICAL MEMBER DUTTA EX.APPs. EDM-676/04,502,432 & 496/05 & 439-443/05