High Court · 2010

Judgment

1. disposed of by this common judgment and order.

2. In all the writ petitions the petitioners have challenged the action of the respondents in levying interest on the amount recoverable from the petitione rs on account of the excise duty in terms of Section 154 of the Finance Act, 200 3. Briefly stated the facts leading to filing of the instant writ petitions are as follows. On 24.12.97 the Central Govt. announced a new Industrial Policy Resoluti 3. on for the North Eastern region of the country granting various incentives to th e new industries to be established in the North Eastern region. To give effect t o the said policy resolution, various notifications were issued under the Act. O ne of the notification dated 08.07.1999 was issued by the Joint Secretary to the Govt. of India, Ministry of Finance, Department of Revenue granting exemption t o the new industrial units from payment of central excise duty. As per the said notification, the new industrial unit first to pay the duty as applicable and th ereafter the Department was to refund the same within fifteen days. Accordingly a sum of Rs. 14,08,88,610/- was refunded to the petitioner Company for the month of April, May and June, 2000. However, by Section 154 of the Finance Act, 2003, the exemption granted to the cigarette manufacturing unit was withdrawn retrosp ectively and it was provided that while the excise duty already refunded to the unit was liable to be recovered, no further refund will be made and the unit wou ld be liable to pay excise duty not paid for the period while the exemption noti fication was in force between 08.07.99 and 27.01.2001. The petitioner challenged the validity of Section 154 as introduced by the Finance Act, 2003 by filing a writ petition being W.P.(C) No. 4398/2003.

4. This Court by an interim order dated 13.06.2003 restrained the responden ts from recovering and/or realizing any sum of money already paid to the petitio ner company by way of refund of excise duty in exercise of powers contained in S ection 154 of the Finance Act, 2003 and/or in pursuance of any notification or c ircular or order issued thereunder. The interim order by this court was made to continue till the next date of hearings that is 17.07.2003, 29.07.2003 and 30.07 .2003 wherein the interim orders were made to continue till further orders.

5. In the meantime the W.P.(C) No. 4398/03 filed by the petitioners challen ging the retrospective amendment of Section 154 of the Finance Act, 2003 pending in this Court was permitted to be transferred to the Apex Court as Transfer Ca se No. 27/04 by order dated 19.01.04.

6. The Apex Court on 19.09.05 finally decided the Transfer cases challengi ng the retrospective amendment as well as the appeal arising out of the judgment of the Division Bench of this Court. The said retrospective amendment made by t he Finance Act, 2003 was upheld by the Apex Court vide judgment and order dated 19.09.2005 and accordingly all the appeals as well as the Transfer Petitions wer e disposed of according to the said judgment and order. Thereafter, the petition er filed a review petition before the Apex Court and the same was dismissed on 1 5.12.05. After the judgment of the Apex court upholding the validity of Section 154 of the Finance Act, 2003, the petitioner deposited an amount of Rs. 14,08,88 ,610/-. The respondents however have issued notice for payment of interest of Rs . 5,60,78,347/-. Interest has also been levied for the period for which the reco very of central excise as per Section 154 of the Finance Act, was stayed by this Court.

7. It is in the aforesaid backdrop, the petitioners have challenged the not ice dated 25.10.05 issued by the Superintendent of Central Excise, Guwahati -IV Range directing the petitioners to pay interest amounting to Rs. 4,75,93,340/- a nd the detention order dated 09.02.07. Further prayer made in the writ petition is for declaration to the effect that the levy and demand of interest for Rs. 5 ,60,78,347/- is unconstitutional and illegal.

8. While entertaining the writ petitions by order dated 23.02.07 when the l earned Single Judge declined to pass any interim order by way of restraining the respondents from recovering the interest from the petitioners, a writ appeal be ing WA No. 84/07 was preferred in which an interim order was passed in favour of the petitioners on 26.02.07 granting stay of recovery of the interest. Being ag grieved, the respondents preferred an appeal before the Apex Court being Special Leave to Appeal (Civil) No. 15290/07. The appeal has been disposed by order dat ed 08.10.07 requesting this Court to dispose of the writ petitions expeditiously without being influenced by the observations made in the order in writ appeal.

9. By Annexure-F impugned order dated 25.10.07, the petitioner in W.P.(C) N o. 839/07 was requested to pay the basic duty and additional excise duty alongwi th interest of Rs. 4,75,93,340/- and to submit the payment towards issuing autho rity, i.e. Central Excise, Guwahati-IV Range. Annexure-K is the detention order dated 05.07.06 issued by the Deputy Co 10. mmissioner of Central Excise in exercise of power conferred by Clause (a) of Sub -Section (i) of Section 142 of the Customs Act, 1962 requiring and requesting t hat the amount of Rs. 5,60,78,347/- should be deducted from any money payable to the petitioners by any officer of Customs/Central Excise all over India. As per the said notice, further requirement and request in terms of Clause (b) of Sub- section (i) of Section 142 of the Customs Act, 1962, is that the said amount sh ould also be recovered by detaining and selling of any goods belonging to the pe titioners, which are under control of any officer of Customs/Central Excise all over India.

11. By Annexure-M impugned letter dated 09.02.07, the petitioner was directe d to pay the amount in question immediately under threat of invoking Section 142 (1) (e) (ii) of the Customs Act applicable to Central Excise towards attaching any movable and immovable property belonging to the petitioner or under its con trol for the recovery of the said duties.

12. The grounds on which the aforesaid orders have been put to challenge are that the petitioner Company having already paid back/returned the principal amo unt of refund granted as per the notification dated 08.07.99 and pursuant to the aforesaid judgment of the Apex Court it cannot be made liable to pay any furthe r amount than what has already been paid. According to the petitioners they were never in arrears of any central excise duty due or payable w.e.f. 03.06.03 to 1 5.12.05 or even before and since there was challenge to the correctness or other wise to the retrospective legislation and pending such judicial review of the pr ovisions contained in the Finance Act, recovery of the demand was stayed by this Court.

13. The petitioners have pleaded that the impugned order/demand of recovery of interest of Rs. 5,60,78,347/- and the subsequent notice for recovery of the said amount are flagrantly arbitrary and the same cannot apply in the case of th e petitioner company as there was no willful default on the part of the petition er company and hence there can be no interest payable by the petitioners. Furthe r stand of the petitioners is that the liability for interest being in the natur e of a penalty is not an automatic liability and is not imposable unless the pri ncipal amount has not been paid in deliberate defiance of the law or the assesse e is guilty of contumacious conduct. According to the petitioners since they wer e bona fide disputing the constitutional validity and there being already judgme nt of this Court in its favout, no claim for such interest which is in the natu re of penalty can be made and thus the impugned claim is bad in law and ought t o be quashed/set aside by this Court. It is stand of the petitioners that it is self evident from the rate of interest being 15% that the charge is in the natu re of penalty and not in the nature of compensation.

14. The petitioners have further contended that during the time when the re trospective amendment under Section 154 of the Finance Act, 2003 came into force , the matter being subjudice before this Court and this Court having stayed the recovery, refunds, based on any notification, amendment or circular and further that order of stay of recovery passed by this Court being continued even duri ng the time the matter was under challenge by the petitioners and respondents, t he respondents have no legal or constitutional or any other right that may accru e in law to levy and demand the amount of interest amounting to Rs. 5,60,78,347/ -. Be it stated here that while the petitioner had challenged the Finance Act, 2 003 the respondents had challenged the judgment and order of this Court granting the benefits in favour of the petitioners.

15. It is the further stand of the petitioners that the demand for interest upon the amounts which were legally refunded, recovery of which was stayed by t his Court and by the Apex Court is illegal, arbitrary and not tenable in law. Ac cording to the petitioners no amount of interest can be leviable on the amount w hich the petitioner company was legally entitled to receive as per the Industria l Policy and the notifications issued as is in the case of the petitioner.

16. The respondents have filed their counter affidavit denying the aforesaid contentions raised by the petitioners. Their case is that since the constituti onal validity of Section 154 of the Finance Act, 2003 has been upheld by the Ape x Court in the decision reported in (2005) 7 SCC 725 (R.C. Tobacco Pvt. Lt. vs. Union of India), the petitioners are liable to the consequence thereof. It has f urther been stated that the provision of Section 154 of the Finance Act, 2003 un der which recovery of duties was to be made has provided an independent machiner y for recovery of duties which is required to be recovered alongiwth interest du e thereon and the same having been upheld by the Apex Court in the aforesaid dec ision, the petitioners are liable to pay the interest in question.

17. In the affidavit in reply filed by the petitioners while reiterating and reaffirming the contentions raised in the writ petitions, it has been contended that in the aforesaid decision of the Apex Court, there being no specific order that interest can be recovered as per the provision of Sub-section 4 of Section 154 of the Act and/or the Apex Court in the said judgment having not decided th e question as to whether in view of the stay order granted by this Court and con tinued by the Apex Court, the amount demanded was recoverable within the meaning of Section 154(4) of the Act, the respondents are precluded from making the dem and for payment of interest even for the period when the said stay order was in operation. I have heard Dr. A.K. Saraf, learned Sr. counsel appearing for the petit 18. ioners as well as Mr. B. Sarmah, learned Standing counsel, Central Excise. I hav e also considered the entire materials on record. Dr. Saraf, in support of his argument centering around the aforesaid gro 19. unds urged in the writ petition, has placed reliance on the following decisions: 1) (1976) 1 SCC 766 (Superintendent of Taxes, Dhubri and others vs. M/s. Onkarmal Nathmal Trust) (1999) 3 SCC 657 (State of Kerala and others 2) vs. V.R. Kalliyanikutty and anr.) 3) (2005) 1 SCC 657 (Commissioner, Trade Tax, U.P. vs. DSM Group of Industries) On the other hand, Mr. Sarmah, learned Standing counsel, Central Excise 20. referring to the decision in R.C. Tobacco (supra) submitted that the impugned ac tion on the part of the respondents is sustainable in law. During the course of hearing, he also produced the statement of account dated 12.08.2010 prepared by the Assistant Commissioner, Central Excise Division, Guwahati indicating the det ails of the recoveries made from cigarette units under Guwahati Central Excise D ivision pursuant to the aforesaid judgment of the Apex Court upholding the valid ity of Section 154 of the Finance Act, 2003. In the said statement, the parties mentioned are 1) Guwahati-31 2) Guwahati-16 M/s. Frontier Multiproducts, EPIP Amingaon, M/s. R.C. Tobacco Pvt. Ltd. Kalapahar, 3) M/s. Assam Cigarettes Co. Pvt. Ltd., Amingaon, Guwahati-31 4) M/s. Assam Tobacco Pvt. Ltd., Rani, Guwahati M/s. Tirupati Tobacco (P) Ltd. Kalapahar, Ghy M/s. Golconda Industries, Rani, Ghy M/s. Sunflag Enterprise Pvt. Lt. Ghy M/s. Sri Agasthya Industries Pvt. Ltd. Rani, Ghy 2) 3) 4) 5) The whole controversy being centering around Section 154 of the Finance 21. Act, 2003, more particularly Section 154 (4), it will be appropriate to quote t he provisions of Section 154 at this stage. (cid:28)154. Amendment of notifications issued under Section 5-A of the Central Excise Act- (1) the notifications of the Govt. of India in the Ministry of Finance (Dep artment of Revenue) Nos. GSR 508 (E) dated 08.07.1999 and GSR 509(E) dated 08.07 .1999, issued under sub-section (1) of Section 5-A of the Central Excide Act rea d with sub-section (3) of Section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957) and sub-section (3) of Section 3 of the Additional Duties of Excise (Textile and Textile Articles) Act, 1978 (40 of 1978), by the Central Government shall stand amended and shall be deemed to have been amended in the manner as specified against each of them in column (3) of t he Ninth Schedule, on and from the corresponding date specified in column (4) of the Schedule retrospectively, and accordingly, notwithstanding anything contain ed in any judgment, decree or order of any court, tribunal or other authority, a ny action taken or anything done or purported to have been taken or4 done under the said notifications, shall be deemed to be and always to have been, for all p urposes, as avidly and effectively taken or done as if the notifications as amen ded by this sub-section had been in force at all materials times. For the purposes of sub-section (1), the Central Government shall have a (2) nd shall be deemed to have the power to amend the notifications referred to in t he said sub-section with retrospective effect as if the Central Government had t he power to amend the said notifications under sub-section (1) of Section 5-A of the Central Excise Act read with sub-section (3) of section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957) and sub-s ection (3) of Section 3 of the Additional Duties of Excise (Textile and Textile Articles) Act, 1978 (40 of 1978), retrospectively at all materials times. (3) No suit or other proceedings shall be maintained or continued in any cou rt, tribunal or other authority for any action taken or anything done or omitted to be done, in respect of any goods under the said notifications, and no enforc ement shall be made by any court, tribunal or other authority of any decree or o rder relating to such action taken or anything done or omitted to be done as if the amendments made by sub-section (1) had been in force at all material times. (4) Recovery shall be made of all amounts of duty or interest or other charg es which have not been collected or, as the case may be, which have been refunde d but which would have been collected, or, as the case may be, which would have not been refunded if the provisions of this section had been in force at all mat erial times, within a period of thirty days from the day on which the Finance bi ll, 2003 receives the assent of the President, and in the event of non-payment o f duty or interest or other charges so recoverable, interest at the rate of fift een per cent per annum shall be payable from the date immediately after the expi ry of the said period of thirty days till the date of payment. (cid:29) 22. On a reading of Section 154 of the Act, what is seen is that the same is intended that while the excise duties already refunded to the petitioners would be liable to be recovered, no further refund would be made and the petitioner c ompany would be liable to pay Excise Duty not paid for the period when the Notif ied Exemption was in force between 08.07.99 and 27.01.2001. The Assistant Commis sioner of Central Excise accordingly passed orders dated 05.06.03 demanding the amounts refunded to the petitioner company for the months of April, May and June 2000 and rejecting the pending refunds for the subsequent periods from July, 20 00 to January, 2001. As noted above, the petitioners challenged the retrospective amendment m 23. ade by the Finance Act, 2003 in the Notification 32/99 dated 08.07.99 in respect of cigarettes before this Court by filing a writ application which was numbered as W.P.(C) No. 4398/03. This Court by an interim order dated 13.06.03 restraine d the respondents from recovering and/or realizing any sum of money already paid to the petitioner company by way of refund of excise duty in exercise of powers contained in Section 154 of the Finance Act, 2003 and/or in pursuance of any no tification or circular or order issued thereunder. The interim order was made to continue till next date of hearing, i.e. 17.07.03, 29.07.03 and 30.07.03 wherei n the interim orders were made to continue till further orders. In the meantime the W.P.(C) No. 4398/03 filed by the petitioners challenging retrospective amend ment of Section 154 of the Finance Act, 2003 pending in this Court was permitted to be transferred to the Apex Court by order dated 19.01.04.

24. The Apex Court on 19.09.05 finally decided the transfer cases challengin g the retrospective amendment as well as the appeal arising out of the judgment of the Division Bench of this Court. The said retrospective amendment made by th e Finance Act, 2003 was upheld by the Apex Court vide judgment and order dated 1 9.09.05 and accordingly all the appeal as well as the transfer petitions were di sposed of according to the said judgment and order. It was in the aforesaid backdrop the respondents issued the aforesaid im 25. pugned orders. According to Dr. Saraf, learned counsel for the petitioners, levy , demand and recovery of the interest of the amount in question is not with a v iew to collect any amount refunded as ordered by the Apex Court, but only to imp ose a penalty by way of interest upon the legitimate and legal refund amount whi ch has been ordered to return and which has been returned and therefore, it is i n excess of jurisdiction. According to him, during the period of stay the petiti oner cannot be said to be in default of payment of central excise duty as during the said period the petitioners were not bound to pay and therefore no interest amount can be levied, demanded or recovered from the petitioners.

26. Section 154 of the Finance Act, 2003 allows recovery retrospectively and therefore cascading effect of interest to be charged from retrospective dates t o the date of actual payment will have to be executed. If the contentions of the petitioners is to be accepted, same would mean that the petitioners could have delayed in paying the principal amount indefinitely attracting nil rate of inter est. In fact, the petitioners had preferred a review petition, against the same Apex Court’s judgment and the same was also dismissed.

27. The provision of Section 154 of the Finance Act, 2003 under which recov ery of duties was to be made provides independent machinery for recovery of duti es which is required to be recovered alongwith the interest due thereon. Sub-sec tion 4 of Section 154 of the Act provides that the amount of duty not paid withi n one month from the date of assent to the Finance Bill, 2003 will carry an inte rest at the rate of 15 per cent per annum from the date of expiry of the period of 30 days till the date of payment. Under Section 154, all duties would be reco vered retrospectively. Merely because the petitioners could delay the payment of duties by few years due to litigation, same would not necessarily follow and/o r allow them not to pay the interest accrued retrospectively. The petitioners we re well aware of the provisions of Section 154 of the Act which were put to chal lenge. The interim order passed was subject to final outcome of the litigation. The Apex Court having upheld Section 154 of the Act, consequence thereof must ne cessarily follow and the petitioners cannot take the plea of immunity pendent-li te. The proceeding was always subject to the final outcome. The decision in M/s. Onkarmal Nathmal Trust (supra), has been pressed i 28. nto service so as to contend that the State having failed to make any endeavour to get stay order vacated either in this Court or in the Apex Court cannot take advantage of its own wrong and lack of diligence. In that case, the State faile d to avail the opportunity for stay of operation of the High Court’s judgment a t the earliest moment. It was in that context, the Apex Court observed that Stat e followed the policy of inactivity which was not impossibility. The State was r equired to issue notice under Section 7 (2) of the particular Act within two ye ars of expiry of the period of return. It was contended on behalf of the State t hat it was impossible to do so in view of the stay orders operating in the proc eeding. This case is of no help to the case of the petitioners as the facts and law involved in both the cases are quite different and distinct. Merely because the stay order was operating in favour of the petitioners during the challenge o f validity of Section 154 of the Act, it cannot be said that the authorities pre cluded demanding interest accrued during the period of operation of the stay ord er. In V.R. Kalliyanikutty (supra), the Apex Court was concerned with the pr 29. ovisions of Kerala Revenue Recovery Act, 1968. It was held that the scheme of th e Act is to provide for speedy recovery not merely the public revenue, but also the other kind of loans which are required to be recovered speedily in public in terest. Examining as to whether the time barred claims of the State Financial Co rporation and the banks can be recovered under Section 71 of the Act, it was hel d that looking to the scheme of recovery and refund (cid:28)amount due (cid:29) under Section 7 1 and those amounts which the creditor could have recovered had he filed a suit . In the instant case, it is not the case of any time barred claim. Thus, this c ase is also no help to the case of the petitioners.

30. In DSM Group of Industries (supra), the respondent company had claimed e xemption under particular notification on the ground of expansion, diversificati on and modernization which was rejected amongst others on the ground that the co mpany was in arrears of tax. Posing the question as to whether the company was i n arrears of tax, the Apex Court held that during the period of stay, the respon dents were not bound to pay and therefore, they could not have been said to be i n arrears. In the said case, the respondent company had obtained stay orders fro m the High Court. Thus, the issue involved in the said case is altogether differ ent unlike the present one and consequently, is of no help to the case of the pe titioners. 31. The aforesaid decisions were rendered in the background of the facts of those case. As has been observed by the Apex Court in Ambica Quarry Works vs. St ate of Gujarat reported in (1987) 1 SCC 213, the ratio of any decision must be u nderstood in the background of the facts of that case. It has been said long tim e ago that a case is only an authority for what it actually decides and not what logically follows from it. (see Lord Halsbury in Quinn vs. Leathem (1901)AC 495 ). 32. In R.C. Tobacco Pvt. Lt. (supra) in which the Apex Court upheld the prov ision of Section 154 of the Finance Act, 2003 duly took note of the interim orde r passed in the writ petition filed by the present petitioner. In paragraph-9 of the said judgment, while noticing that exemptions available to the manufacturer s of cigarettes from 1999 for the periods concerned was rescinded retrospective ly, observed that same would mean that excise duties already refunded to the pet itioners would be liable to be recovered, no further refund would be made and th at the petitioners would be liable to pay excise duties not paid when the exempt ion was in force. 33. In paragraph 28 of the judgment, the Apex Court recorded as to how betwe en 2002-2003 the dispute as to the purport of the exemption notification during the period of their operation from July, 1999 to January, 2001 was pending in th e Court and as to how the matters were then carried to the Apex Court by the Uni on Govt. It was also noticed that while the proceedings were pending and the iss ue was still at large, Section 154 was enacted and also that in such circumstanc es, Parliament cannot be blamed for having at least awaited the decision of the High Court, nor can the statutory provision be questioned as being unreasonably retrospective. In paragraphs-29 and 50 it has been observed thus: (cid:28)29. The pendency of the proceedings before the courts meant that there was a po ssibility of an outcome adverse to the petitioners however strong the petitioner s may have considered their case to be. If this Court had reversed the view of t he High Court, the petitioners would have had to bear the burden of the excise d uty for the period they had manufactured the cigarettes. It could not have been predicted with any certainty that the appeals of the Union of India would fail. By enacting Section 154, Parliament has forestalled a decision by this Court and in effect taken away the basis for the decisions of the High Court. In the circ umstances, it could not be said that the financial burden was unforeseen or unfo reseeable. 50. Furthermore having upheld the constitutional validity of Section 154, it wou ld be a pyrrhic victory for the Union of India if they could not in fact recover the tax. It is not a case where the legislation has merely withdrawn the exempt ions. The consequences of the withdrawal have been statutorily provided for incl uding the recovery of the excise duties refunded or not paid. The effective peri od of such imposition is about eight months. The State has been deprived of reve nue without any corresponding benefit. It may be that the retrospective operatio n may operate harshly in some cases, but that would not by itself invalidate the demand. It needs to be emphasized that in effect the retrospective operation ex tended over a very short period and principles of equity must give way to expres s statutory provisions. (cid:29)

34. An interim order in a proceeding is always subject to the outcome of the final adjudication of the matter. If the petitioner is not successful in the fi nal decision, the interim order would stand set aside. So the benefit derived by interim order cannot create any right, nor the petitioner get any right to clai m exemption from payment of interest for the period during which the interim ord er was in operation. 35. The petitioners have stated in the affidavit in reply that in the case o f R.C. Tobacco Pvt. Lt. (supra), there was no specific order passed by the Apex Court towards recovery of the interest. It has also been contended that although the Apex Court upheld retrospective amendment made in Finance Act, 2003, but in the said judgment the Apex Court did not decide the question as to whether in v iew of the stay already granted by this Court and continued by the Apex Court, t he amount demanded was (cid:28)recoverable (cid:29) within the meaning of Section 154 (4) of th e Finance Act, 2003. Nothing precluded the petitioners from agitating that aspec t of the matter before the Apex Court. The Apex Court has given the finality to the matter. It is now not open for the petitioners to contend that during the pe riod in which the stay order was in operation, they are not liable to pay the in terest on the excise duties. The benefits which the petitioners sought to be enforced by challenging 36. the constitutional validity of Section 154 of the Finance Act, 2003 was on the b asis of the pre-existing benefit or one flowing from a pre-existing right. The d ifference between a pre-existing right or benefit on one hand and the right or b enefit, which is considered just and fair on the other hand is vital. The former falls within the jurisdiction of court while later does not. It cannot be spelt out from the decision of the Apex Court in M/s. R.C. Tobacco (supra) that such a right or benefit has accrued to the petitioners as the specific question of th e issue involved was confined not only to the constitutional validity of Section 154 of the Act, but also to all relevant circumstances and incidental questions centering around the issue. Hence the present relief prayed for by the petitio ners must be deemed to have been denied, for what is claimed but not granted nec essarily get denied in judicial or quashi-judicial proceeding.

37. For all the aforesaid reasons, I do not find any merit in the writ petit ions and accordingly they are all dismissed. Consequently the interim order als o stands vacated. There shall be no order as to caosts.