The division bench of Jammu and Kashmir and Ladakh High Court has held that a change of opinion of the court in the subsequent matter would not give any leverage to appellants to reopen decisions that have attained finality.
The Government of India with the avowed object of encouraging commercial activity for setting up manufacturing units in industrially backward areas came out with a policy of granting tax exemptions to the newly set up manufacturing units for a period of 10 years from the date of the commencement of business. Based on Notification No. 56/2002 in the State of J&K, new industrial units were entitled to a hundred percent excise duty exemption for a period of 10 years from the date of commencement of production. It provided that the assessee would be entitled to a refund of duty paid other than duty paid by way of utilization of CENVAT credit.
The government levied Education Cess and Secondary and Higher Education Cess by virtue of the Finance Act No. 2/2004 and 22/2007 respectively and in connection with the goods manufactured or produced. The Finance Acts themselves provide that said cess would be a duty of excise at the rate of 2 % and 1 % respectively calculated on the aggregate of all duties of excise which are leviable and collected by the Central Government under the provisions of the Act or under any law for the time being in force.
Regarding the dispute whether the duties of excise leviable and collected under the Act alone is to be refunded or Education Cess and Secondary & Higher Education Cess which are leviable and collected under the Finance Acts are also to be refunded in view of the exemption, the Supreme Court in SRD Nutrients Pvt. Ltd held that the Education Cess and the Secondary & Higher Education Cess levied on the excise duty partakes the character of excise duty itself. On the basis of the above judgment CESTAT by the impugned orders in appeals held that the assesses are entitled to refund of Education cess and Secondary & Higher Education Cess.
Later a judgment was rendered by the Supreme Court in Unicorn Industries taking a contrary view on the subject that the appellant decided to file appeals. The commissioner, filed an appeal u/s 35 G of the Central Excise Act, 1944, against the orders of CESTAT, setting aside the orders passed by the Commissioner (Appeals) and the Adjudicating Authority and directing for the refund of the Education Cess and Secondary & Higher Education Cess to the assessee, M/s Narbada Industries.
The High Court observed that the assessee has got the benefit of refund lawfully under the prevailing law, they cannot be directed to refund the same merely on the basis of a change of opinion. Therefore, the appeals for the sole purpose to seek return of the amounts refunded in view of the decision of SRD Nutrients on the change of opinion subsequently are meaningless. If such an action is permitted, it will open Pandora’s box and the lis between the parties which had attained finality will never come to an end. This would be against the public policy which envisages providing quiet us to litigation at some stage.
The Coram of has held that “we find no merit in these appeals and the same is dismissed, first for the reason, they are barred by limitation, secondly, they are not maintainable and, lastly, the change of opinion of the court in a subsequent matter of another party would not give any leverage to the appellants to reopen the decisions which have attained finality”.
コメント