High Court · 2012

In exercise of the powers conferred by sub-section (1) of Section 5A of the Central Excise Act, 1944 (1 of 1944), read with sub-section (3) of section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (59 of 1957), and sub-section (3) of section 136 of the Finance Act, 2001 (14 of 200 1), and in supersession of the notification of the Government of India, in the Ministry of Finance (Department of Revenue), No. 69/2003-Central Excise, dated t he 25th August, 2003, published in the Gazette of India, vide G.S.R. 679(E), dat ed the 25th August, 2003, the Central Government, being satisfied that it is nec essary in the public interest so to do, hereby exempts all goods falling under s ub-heading 2401.90, 2402.00, 2404.41, 2404.49 2404.50 or 2404.99 of the First S chedule and the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 198 6), from the whole of the duties of excise, additional duties of excise leviable under the said Central Excise Tariff Act, the Additional Duties of Excise (Good s of Special Importance) Act and the National Calamity Contingent duty leviable thereon under sub-section (1) of section 136 of the said Finance Act, subject to the following conditions, namely,-- (A) the exemption under this notification shall be available only in respect of a unit which,-- (i) laya, Mizoram, Nagaland or Tripura; is located in the State of Arunachal Pradesh, Assam, Manipur, Megha (ii) , 1997, but not later than the 28th day of February, 2001; had commenced commercial production on or after the 24th day of December (iii) had availed of the benefit under the notification of the Government of I ndia in the Ministry of Finance (Department of Revenue) No. 32/99-Central Excise , dated the 8th July, 1999 [G.S.R 508 (E) dated the 8th July, 1999] or No. 33/99 -Central Excise, dated the 8th July, 1999 [G.S.R..509(E) dated the 8th July, 199 9]; and (iv) y, 2001. has continued its manufacturing activities after the 28th day of Februar an amount equal to the sum of basic excise duty, special excise duty, ad (B) ditional excise duty and National Calamity Contingent duty, payable, but for the exemption in this notification, shall be utilized by the manufacturer only for investment in,- (i) plant and machinery in a manufacturing unit which is located in the Stat e of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland or Tripura ; or (ii) al Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland or Tripura; infrastructure or civil works or social projects in the State of Arunach (C) the investment in terms of condition (B) shall be made before the expiry of six months from the end of each quarter; the manufacturer shall provide all details relating to the investment ma (D) de in terms of condition (E), within one month after the expiry of the period of six months referred to in condition (C), to a Committee consisting of, the Chie f Commissioner of Central Excise, Shillong, the Principal Secretary of the Depar tment of Industry of the State concerned, in which the unit is located and the P rincipal Secretary of the Department of Industry of the State in which the inves tment is made, and shall have to prove to the satisfaction of the said Committee that the investment has been made for the purpose specified in condition (B); if the Committee referred to in condition (D) is satisfied that the inve (E) stment as specified in condition (B), has been made, it shall issue a certificat e to this effect to the manufacturer within a period of three weeks after the ex piry of the one month referred to in condition (D), which shall be produced by t he manufacturer, within a period of two weeks from the date of issue of such cer tificate, to the jurisdictional Central Excise Officer; (F) the investment made under this notification shall not be allowed to be w ithdrawn before the expiry of ten years from the date on which the investment is made except in a case where the investment withdrawn is reinvested in the same manner as specified in this notification, in any one of the States mentioned in condition (A): Provided that if the investment made under this notification is withdraw n before the expiry of ten years and is not reinvested as mentioned above, the d uty which is equal to the amount so withdrawn and not so reinvested shall be pai d by the manufacturer on the date on which the investment is withdrawn. G.S. Karki Under Secretary to the Government of India (cid:29) Notification No. 28/04 (cid:28)New Delhi, dated the 9th July, 2004 G.S.R (E).-In exercise of the powers conferred by sub-section (1) of S ection 5A of the Central Excise Act, 1944 (1 of 1944), read with sub-section (3) of section 3 of the Additional Duties of Excise (Goods of Special Importance) A ct, 1957 (58 of 1957) and sub-section (3) of section 136 of the Finance Act, 200 1 (14 of 2001), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby makes the following amendments in the notif ication of the Government of India in the Ministry of Finance (Department of Rev enue) No. 8/2004-Central Excise, dated the 21st January, 2004 and published in t he Gazette of India vide number G.S.R.60(E), dated the 21st January, 2004, namel y :- In the said notification, in the conditions, for conditions (C), (D) and (E), the following shall be substituted, namely:- (cid:28)(C) the investment in terms of condition (B) shall be made in the following manner, namely :- (i) an amount equal to the sum of basic excise duty, additional excise duty and National Calamity Contingent Duty, payable in a quarter, but for the exempti on under this Notification, shall be deposited by the manufacturer within sixty days from the end of the quarter, in an escrow account opened by the manufacture r, for this purpose, in a bank authorized for excise duty collection; (ii) operations including withdrawals and closure of the said escrow account shall be made with the prior approval of the jurisdictional Commissioner of Cent ral Excise, taking into account the conditions specified in this notification an d to safeguard the revenue; (iii) the manufacturer shall, pending investment in the manner prescribed in c ondition (B), execute a bond, as may be specified by the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, binding himself to pay on demand an amount equal to the amount referred to i n clause (i) along with interest thereon at the rate specified under section 11A B of the Central Excise Act, 1944, and not so invested, in terms of condition (B ), with the amount lying in balance in the said escrow account as security or co llateral; (iv) the amount deposited in the said escrow account, in terms of clause (i), shall be invested, in the manner specified in condition (B), within two years f rom the date of its deposit in such account; (v) the amounts withdrawn from the escrow account shall be invested for the purposes specified in condition (B) within sixty days of its withdrawal from suc h account. (D) the manufacturer shall,- submit a quarterly statement, within sixty days from the end of the rele (i) vant quarter to a Committee, consisting the Chief Commissioner of Central Excise , Shillong, the Principal Secretary in the Department of Industry of the State c oncerned in which the unit is located and the Principal Secretary in the Departm ent of Industry of the State in which the investment is being made, giving detai ls of deposits made in and withdrawal made from, the escrow account, along with details of investment, made during the quarter; (ii) provide all details relating to the investment made in terms of conditio n (B), not later than one month after the expiry of the period of two years refe rred to in condition (C), to the said Committee; (iii) been made for the purposes specified in condition (B); prove to the satisfaction of the said Committee that the investment has (E) if the Committee referred to in condition (D) is satisfied that the inve stment as specified in condition (B), has been made, it shall issue a certificat e to this effect to the manufacturer within a period of one month from the recei pt of the details as referred to in condition (D), and on the issuance of which, the liability of the manufacturer shall stand discharged to the extent of inves tment so certified; (EA) if the manufacturer fails to make the deposit or does not invest the amo unt specified in condition (B), within the stipulated period and in the manner, then, the duty which is equivalent to the amount not so deposited or invested sh all be recoverable from the manufacture along with interest thereon at the rate specified under section 11AB of the Central Excise Act, 1944, and without prejud ice to any action that may be taken under the provisions of the said Act or any other law for the time being in force, by forfeiture of amount in the said escro w account. G.S. Karki Under Secretary to the Government of India (cid:29)

7. The Revenue issued notice dated 29.07.2005 under Section 11A of the Act asking the assessee to show cause why the Central Excise duty for the period fro m 9.7.2004 to 30.9.2004 should not be recovered with interest and penalty as the assessee claimed exemption without complying with the conditions for the exempt ion. After adjudication, the adjudicating authority confirmed the demand with in terest and also levied penalty. On appeal, the Customs, Excise and Service Tax A ppellate Tribunal (CESTAT) set aside the order of the revenue authority and uphe ld the plea of the assesee that the conditions for exemption had been duly compl ied with. On further appeal of the revenue, this Court upheld the view taken by the CESTAT with the following observations and findings : (cid:28)15. The undisputed facts of the case also reveal that the Department by its letter dated 8.12.2004 had intimated the respondent Company that a separ ate Escrow Account in respect of the Agartala Unit should be opened by it and, accordingly, a separate account i.e. Account No. 01000051403 was opened to which account an amount of Rs. 8,64,38,636.00 was transferred from the main account i .e. Account No. 01000051400. The Department was informed of the said facts by th e respondent Company by letter dated 10.1.2005. No objection was taken by the De partment at that stage with regard to the transfer. That apart, the transfer was from one Escrow Account to another Escrow Account which was opened on the advic e of the Department. Such a transfer, therefore, cannot be understood to be a wi thdrawal or operation of the Escrow Account by the respondent Company, within th e meaning of the Notification No. 8/2004-CE read with the Notification No. 28/20 04-CE. If the Department itself had advised the respondent Company to open a sep arate Escrow Account in respect of the Agartala Unit after it was informed that the amount equivalent to the duty in respect of both the Guwahati and the Agarta la Units were deposited in one Escrow Account, it is axiomatic that the Departme nt had really ordered for transfer of the amount of duty in respect of the Agart ala Unit to the separate Escrow Account which was directed to be opened. 16. Coming to the transfer of the amount of Rs. 26.58 Crores from th e Escrow Account No. 01000051400 to a Corporate Liquid Term Deposit Account so a s to earn interest, the said transfer was made by the respondent Company unilate rally. The question, therefore, that has to be answered by the Court is whether the said transfer made to the Corporatte Liquid Term Deposit Account was prohibi ted by the Notification No. 8/2004-CE read with the Notification No. 28/2004-CE. The contention of the respondent Company that the transfer was t 17. o a Corporate Liquid Term Deposit Account which was linked to the Escrow Account and that the said transaction was within the umbrella of the Escrow Account can not be brushed aside, inasmuch as, the statement of the Bank Manager recorded in the proceedings under Section 14 of the Central Excise Act, had clearly indicat ed that a Corporate Liquid Term Deposit Account can be brought under an Escrow a rrangement and that, in the present case, the Corporate Liquid Term Deposit Acco unt was linked to the current account No. 01000051400 and the interest earned al so came under the purview of the Escrow Account. However, the fact remains that the said transfer to the Corporate Liquid Term Deposit Account was made, as stat ed by the Bank Manager, without the knowledge of the Central Excise Department. Under the Notification bearing No. 28/2004-CE (cid:28)operations including withdrawal a nd closure of the ESCROW Account (cid:29) require prior approval of the jurisdictional C ommissioner of Excise. In a situation where the Corporate Liquid Term Deposit Ac count was linked to the Escrow Account and the interest earned became a part of the Escrow Account, as stated by the Bank Manager, the transfer that had taken p lace must be understood to be a notional transfer and the money in the Escrow Ac count has to be understood to be always available, specifically when the Bank Ma nager in his statement had stated that the Bank was at all material times aware as to how the proceeds were to be utilized/ appropriated and the specific role o f the Central Excise Authorities in this regard. The subsequent stand taken by t he Union of India through the Union Minister of State for Finance in the letter dated 31.7.2006 as well as the decision of the Central Board of Excise & Customs , details of which have been noticed, in fact, vindicates the stand taken by the respondent Bank. We do not see how the benefit of the said decisions permitting the amounts lying in an Escrow Account to earn interest should be refused to th e respondent Company merely because such decisions were taken at a point of time subsequent to the actions initiated against the respondent. Coupled with the af oresaid fact is the additional fact recorded by the learned Tribunal that, in t he present case, no part of the amount lying in the Escrow Account(s) or any par t of the interest earned on the said amount was appropriated or utilized by the respondent Company. In the above facts, we are of the view that the learned Trib unal was perfectly justified in coming to the conclusion that the respondent Com pany had substantially fulfilled and complied with the requirements of the Notif ication No. 8/2004-CE read with the Notification No. 28/2004-CE and that the ord ers passed by the learned Commissioner confirming the demand and levying penalty were unjustified. (cid:29) In that context it is seen that section 72 of the Finance Act, 2011 has

8. After the judgment of this Court dated 05.05.2010, the assessee sought i ts implementation. The application for implementation of the order was rejected vide order dated 7.6.2011 with the following observations : (cid:28)4.3 provided for retrospective amendment of the Notification Nos.08/2004-CE dated 21 .01.2004 as amended by Not. No.28/2004-CE dated 09.07.2004 wherein time line pro vided for withdrawal from the Escrow account has been made 4 years in place of 2 years from the date of deposit. AS any withdrawal has to be examined within the scope of the amended Notification, this amount of Rs.8.70 crore transferred to C.L.T.D. account was permissible for withdrawal/investment upto 25.11.2008 becau se the same was deposited in the Escrow Account on 25.11.2004. Hence, this amoun t cannot be allowed for withdrawal as it is beyond the timeline prescribed in th e amended Notification. Further, I find that no benefit arising from the earlier Judgment passed by the Hon’ble High Court and CESTAT, as mentioned above can be given to the assessee in view of sub-section (6) of section 72 of the Finance A ct, 2011 which reads as, (cid:28)(6) No suit or other proceedings shall be instituted, maintained or continued i n any court, Tribunal or any other authority for any action taken or anything do ne or omitted to be done, in respect of the said notifications and no enforcemen t shall be made by any court of any decree or order relating to such action take n or anything done or omitted to be done as if the amendments made in the said n otifications had been in force at all material times. (cid:29)

5. In view of the above, I do not permit withdrawal of Rs.8.70 crore, inclu sive of interest accrued thereon, from Escrow Account as per the application dat ed 25.06.2010 filed by M/s. Dharampal Satyapal Ltd. Agartala. (cid:29)

9. Learned counsel for the assessee submits that the Commissioner, Central Excise, was not justified in rejecting the application for implementation of the order of this Court only on the ground that under the Finance Act, 2011, there is a retrospective amendment of the exemption notification providing for longer period for withdrawal of the amount from the Escrow Account as the said amendmen t does not in any way put further conditions for the exemption but only relaxes the existing conditions.

10. WP(C) No.591 of 2008 was filed by the assessee challenging freezing of t he Escrow Accounts of the assessee on the ground that the assessee had failed to make investment within the period stipulated in the exemption notification, whi le WP(C) No.2814 of 2008 and WP(C) No.1048 of 2008 were filed questioning the de cision of the investment appraisal committee on the issue of compliance of condi tions for investment and consequential demand notices for recovery of the excise duty dues as claimed by the department. Dealing with the issues raised in the w Thus, the ’forfeiture’, in the present cases, on the direction of the su rit petitions, the learned Single Judge recorded the following findings : (cid:28)80. perior authority, suffered from complete non-application of mind inasmuch as it is not the respondent No. 2, who has applied his mind to the facts of the presen t case and decided to forfeit the amount; rather, he merely carried out the dire ctions given by his superior authority; whereas the law made the respondent No. 2 responsible to take a decision on this aspect consciously and after fully appl ying his mind. This was obviously not possible without giving a notice to the pe titioners to have their say in the matter and when the respondent No. 2 has acte d at the behest of his superior officer and not according to his own decision re ached after applying his mind dispassionately and after taking into consideratio n all the relevant facts presented before him, such a decision and the action, t aken on the basis of such decision, cannot be sustained. This apart, the petitio ners also have considerable force in their submission that in respect of a part of the amount, which has been appropriated in the manner, as aforesaid, by the r espondent No.2, the CESTAT, Kolkata, had already granted stay and the stay order was still in operation, when the ’forfeiture’ was done. The respondents have no t even made an attempt to explain this aspect of the petitioners’ case. Thus, th e petitioners have great substance in their contention that the action of the re spondent No. 2 has been suffering from, if not malice in fact, malice in law. (cid:29) It is, thus, clear that the Government of Assam was of the view that est (cid:28)92. ablishment of a five star hotel is an important infrastructural requirement for the development of not only tourism, but also IT industries. Undoubtedly, theref ore, the said hotel project stood approved, in principle, by the IAC by its lett er, dated 12-03-2007. The relevant portion of the proceedings of the IAC approvi ng, in principle, the proposal for establishment of the said ’hotel project’ rea ds as under: \The ’investment’ Appraisal Committee constituted under Notification No. 04/2004 -CE, dated 21-01-2004, in its meeting held on 01-03-2007, at Guwahati decided to accept in principle, the proposal submitted by you vide letter dated September 12, 2006, regarding setting up of a 5 star hotel as a joint venture with the Gov ernment of Assam under claim of ’investment’ in the infrastructure category in t erms of the Notification No. 08/2004-CE, dated 21-01-2004, subject to examinatio n and acceptance of the project report.\ (cid:28)140. Coming to the direction given by the Respondent No. 2 to the bankers not to allow the petitioners to operate the Escrow Accounts, suffice it to point ou t that no such blanket exercise of power is tractable to the notification under consideration. By definition, an Escrow Account is nothing, but an account, whic h the banker(s) holds in trust. In such circumstances, except as has been provid ed under the terms of the agreement governing such account, no other action can be taken. When the withdrawal of money from these accounts was not possible with out permission from jurisdictional Commissioner, the question of directing the b ankers not to let the petitioners operate the account was wholly illegal, for, t he effect of such an order would be that even deposit of such amounts, (which th e petitioners may, on a future date, seek to claim as exemption) in the Escrow A ccount, by the petitioners, would not be possible. Such is not the scheme of the notification; otherwise also, (as already indicated in the interim order passed by the Court) when withdrawal of money was not possible from the said account w ithout permission from jurisdictional Commissioner, no such order was either nee ded or ought to have been passed. In fact, it is not discernible from the materi als on record as to why such a direction freezing the account was given, when th e manufacturer has a period of two years to make ’investment’ of the amount with drawn. (cid:29)

11. with the following directions : As a consequence of the above findings WP(C) No.591 of 2008 was allowed (cid:28)WP(C) 591/2008 (i) The impugned actions taken by respondent No.2, namely, Commissioner of C entral Excise, Shillong, in ’forfeiting’ the sums of Rs.57,61,37,536/- (Rupees F ifty Seven Crore Sixty One Lac Thirty Seven Thousand Five Hundred Thirty Six onl y), Rs.28,55,14,172/- (Rupees Twenty Eight Crores Fifty Five Lakhs Fourteen Thou sand One hundred and Seventy Two) and Rs.30.35.24,690/- (Rupees Thirty Crores Th irty Five Lakhs Twenty Four Thousand Six Hundred and Ninety only) from the Escro w Accounts of the petitioners maintained by the respondent Nos.3 and 4, namely, State Bank of India, New Guwahati Branch, Guwahati, and Branch Manager, State B ank of India, Main Bazaar Branch, Agartala, respectively, and the directions giv en, or requests made, by the respondent No.2 to transfer the said amounts of mon ey from the Escrow Accounts of the petitioners maintained by the respondent Nos. 3 and 4 towards payment of duty and the consequential actions, taken by the resp ondent Nos.3 and 4, in carrying out the directions so given, and/or the request so made, by the respondent No.2 are hereby set aside and quashed. The impugned actions of the respondent No.2, namely, Commissioner of Cen (ii) tral Excise, Shillong, in freezing the Escrow Account Nos. 10566984064 and 10566 984086 of the petitioner No.1, Escrow Account No. 10815025848 of the petitioner No.2 and Escrow Account No. 10815028838 of the petitioner No.3 maintained by the respondent Nos.3 and 4 and/or prohibiting the petitioners from operating their respective accounts aforementioned and/or directing the respondent Nos.3 and 4 n ot to let the petitioners operate their respective accounts aforementioned are h ereby set aside and quashed and, in consequence thereof, it is further directed that while computing the period of investment of two years from the date of dep osit under the Notification, dated 21.01.2004, read with the Notification, dated 09.07.2004, the period, during which the said accounts remained frozen and inop erative, shall be excluded. (iii) The respondent No.2 is hereby directed to consider, and decide, in the l ight of the discussions held above within a period of one month from today all t he applications made by the petitioners, seeking withdrawal of money from their respective Escrow Accounts for the purpose of making investments on their variou s projects, including the project of five star hotel. (cid:29) By making this application, the applicant has also sought for allowing t

12. Learned counsel for the Revenue has not questioned the above findings re corded by the learned Single Judge in WP(C) No.591 of 2008 nor the findings reco rded by this Court in C.Ex. App. No.1 of 2008 have been assailed. Only contentio n raised is that in view of the Finance Act, 2011, the basis of judgment of lear ned Single Judge and of the Division Bench of this Court stands removed and the judgments have become unimplementable. For this proposition, reliance has been p laced on judgment of the Hon’ble Supreme Court in R.C.Tobacco (P) Ltd. and anoth er v. Union of India and another [(2005)7 SCC 725]. It was further submitted tha t order of learned Single Judge dated 29.06.2010 passed in Misc. Case No.479 of 2010 amounted to review and further directions on subsequent cause of action whi ch was not at issue. The said directions are as under : (cid:28)35. hem to file fresh withdrawal applications for making, under the notification, in vestments of the amounts, which would be made available to them pursuant to the judgment and order, dated 06.01.2010, aforementioned. In this regard, it needs t o be noted that as a result of freezing of the accounts as well as in consequenc e of the act of forfeiture of diverse sums of money lying in the Escrow Accounts of the petitioners-applicants, the petitioners-applicants could not make withdr awal applications for making investments. As the respondents’ action of freezing the money lying in the petitioner-applicants’ Escrow Accounts as well as the re spondents’ Escrow Accounts, by way of forfeiture, have already been held to be i llegal and have been set aside, it logically follows that the petitioners-applic ants were estopped from making their withdrawal applications, because of the sai d illegal acts of the respondents. In such circumstances, if the fruits of the o rders are to be made available to the petitioners-applicants, it must, as a coro llary, follow that the petitioners-applicants be allowed to make their withdrawa l applications for making, under the notification, investments of the accounts, which would be made available to them pursuant to this Court’s judgment and orde r, dated 06.01.2010. It is, therefore, directed that for the purpose of making t he withdrawal applications, the periods, during which the Escrow Accounts had re mained frozen as well as the periods, during which diverse sums of money had sto od appropriated by forfeiture of the amounts, shall be kept excluded.

36. Coming to the question of the hotel project, it needs to be noted that b y way of an interim order, dated 30.09.2008, the Court had allowed the petitione rs-applicants to proceed with the construction of the hotel subject to the outco me of the writ petition and since this Court has already held that the petitione rs-applicants’ hotel project stood approved, on principle, by the IAC, and when the petitioners’ hotel project satisfies the conditions of investment on infrast ructure, it becomes clear that the respondents are, now, required to pass approp riate order(s), in this regard, so as to enable the petitioners-applicants recei ve the benefit of the findings of this Court and the directions given in this re gard.

37. The directions, contained above, it may be noted, having not been consci ously denied, though the petitioners-applicants were entitled to, ought to have been given and it is this error, which was apparent on the face of the record an d which has, now, been corrected. Such directions, one must reiterate, shall be made available to the petitioners-applicants so that they can enjoy the fruits o f the directions already passed, in their favour, in their writ petitions. (cid:29) Learned counsel relies upon the judgment of the Hon’ble Supreme Court in State o f Uttar Pradesh v. Brahm Datt Sharma and another [(1987)2 SCC 179] to the effect that by filing a miscellaneous application in a decided writ petition proceedin gs could not be revived in respect of events taken place after long lapse.

13. Learned counsel for the assessee opposed the above submission and submit ted that directions of learned Single Judge in defreezing of Escrow Accounts and permitting appropriation are justified. Investment in a hotel was permissible u nder the conditions of exemption as rightly held by the impugned judgment. Since the revenue has not assailed the said finding, there is no occasion to hold bac k. The binding effect of the directions cannot be held to have been nullified me rely because of retrospective amendment by the Finance Act, 2011. It was further submitted that a clarificatory direction could be issued by learned Single Judg e even after the writ petition was decided and order dated 29.6.2010 thus was fu lly justified. The view taken in Brahm Datt Sharma was distinguishable on the pr inciple laid down in subsequent judgment in K.A.Ansari and another v. Indian Air lines Limited [(2009)2 SCC 164].

14. Thus, the question which requires determination is whether the Finance A ct, 2011 has the effect of nullifying the judgments of this Court and whether or der of learned Single Judge giving further directions, after decision of the wri t petition, is without jurisdiction.

15. and in favour of the assessee. In our view, both the questions have to be answered against the Revenue

16. If a retrospective amendment changes the law on which a judgment is base d in such a way as to create a conflict in the judgment and the changed law, the retrospective changed law may prevail and to that extent the judgment may stand nullified. However, ,when there is no conflict in the judgment and the retrospe ctively enacted law, there is no reason to hold that the judgment stands nullifi ed. In the present case, there is no reason to hold that the Finance Act, 2011, has the effect of nullifying the basis of judgment of learned Single Judge and t he Division Bench. Unlike the situation in R.C.Tobacco (P) Ltd., the retrospecti The notifications of the Government of India in the Mini ve amendment in question does not adversely affect the exemption granted by the three notifications. It only makes the conditions more liberal by giving longer time for compliance. There is no conflict in the applicability of the retrospect ive amendment and the judgments of this Court. The amendment in question is as f ollows : (cid:28)72.(II) stry of Finance (Department of Revenue) number G.S.R. 679(E), dated the 25th Aug ust, 2003, number G.S.R. 60(E), dated the 21st January, 2004 and number G.S.R. 4 19(E), dated 9th July, 2004 (hereinafter referred to as the said notifications), issued under sub-section (l) of Section 5A of the Central Excise Act, 1944, sh all stand amended and shall be deemed to have been amended retrospectively, in t he manner specified in column (3) of the Ninth Schedule, on and from the corresp onding date specified in column (4) of that Schedule, against each of the notifi cations specified in column (2) of that Schedule. (2) Where a manufacturer avails the benefit of exemption provided under the said notifications as amended by sub-section (l), he shall, within a period of s ix months from the date on which the Finance Bill, 2011 receives the assent of t he President, provide details relating to the investments made in terms of condi tion (B) specified in notifications number G.S.R. 679(E), dated the 25th August, 2003 and number G.S.R. 60(E), dated 1st January, 2004, as subsequently amended by number G.S.R. 419(E), dated 9th July, 2004, to the Investment Appraisal Commi ttee. (3) The Investment Appraisal Committee shall, on receipt of details under su b-section (2) and on being satisfied that the investment, as specified in condit ion (B) referred to in sub-section (2), has been made, issue the certificate in accordance with condition (E) specified in the said notifications as soonas poss ible but not later than the 31st day of December, 2012. (4) Any amount lying or remaining unutilised in the escrow account (referred to in notification number G.S.R. 419(E), dated the 9th July, 2004] on or after the 31st day of December, 2012 shall stand forfeited and be appropriated to the account of the Central Government. (5) Recovery of any duty along with applicable interest which has not been p aid but was liable to be paid as if the benefits under the said notifications ha d not been made available on account of non-issue of certificate by the Investme nt Appraisal Committee or on any other account, shall be made within a period of one year from the 31st day of December, 2012 and the provisions of the Central Excise Act, 1944 shall apply for such recovery. (cid:29)

17. It is clear from the text of the amendment that the same does not in any way conflict with the finding recorded by learned Single Judge or by Division B ench of this Court, unlike the situation which was dealt with by the Hon’ble Sup reme Court in R.C.Tobacco (P) Ltd. where the judgment giving benefit of exemptio n was in conflict with the retrospective amendment withdrawing the exemption.

18. Nothing has been pointed out on behalf of the appellant to show that the order of learned Single Judge dated 29.06.2010 goes beyond clarification of the direction already given. The same is not, thus, liable to be quashed on the gro und that it is beyond the inherent jurisdiction of the Court to clarify its dire ction. The subsequent direction is not on a fresh cause of action nor by way of fresh adjudication.

19. Accordingly, we do not find any merit in Writ Appeal Nos.394/2010 and 39 5/2010 and in the stand of the Revenue that the judgments of this Court are rend ered inexecutable. It is, however, made clear that the Finance Act, 2011 will be fully applicable and the parties will act in accordance with the terms and cond itions for exemption as modified by the said Act. The Revenue may, now, deal wit h the matter in accordance with the judgments of this Court by applying the amen dment to the exemption notifications vide Finance Act, 2011. The matter may be f inalised within three months from the date of receipt of a copy of this order.

20. The Misc. Case and the appeals stand disposed of accordingly.