M/S Ferra Tech v. The Union of India and 2 Ors

ORDER

22.08.2023 The instant writ petition has been filed by the Petitioner challenging the order in original dated 05.11.2021 as well as for setting aside the show cause notice dated 20.11.2020. The Petitioner also seeks for a direction upon the Respondents to decide the application for fixation of special rate filed by the Petitioner before initiating any process for recovery from the Petitioner as per law.

¶2This Court have duly taken note of the demand cum show cause notice dated 20.11.2020. From a perusal of the said show cause notice, it reveals that for the period from December, 2009 to October, 2015 as well as from November, 2015 to June, 2017 an amount of Rs.1,52,55,181/- was disbursed pursuant to the interim order passed by this Court dated

09.12.2016 and the Petitioner herein had also submitted a surety bond/the Solvency Certificate to the jurisdictional Commissioner, of Central Excise and Service Tax, Dibrugarh. It further reveals from the said show cause notice that the Petitioner was directed to show cause as to why the said amount of refund of Rs. 1,52,55,181/- as well as interest and penalty should not be imposed upon the Petitioner.

¶3The Petitioner thereupon submitted a show cause reply stating the grounds as to why the Petitioner is not liable.

¶4Thereupon an order was passed on 05.11.2021 whereby the Page No.# 3/5 Assistant Commissioner of the Central GST Division, Tinsukia have imposed the demand of Rs. 1,52,55,181/- and had also confirmed the interest at the appropriate rate as per Section 11AA of the Central Excise Act, 1955. However, no penalty was imposed.

¶5The Petitioner thereupon filed the instant writ petition challenging the show cause notice as well as the show cause notice dated 20.11.2020 as well as the order dated 05.11.2021.

¶6It is also seen that the Petitioner had also submitted an application requesting for fixation of special rate for the various years for which the show cause notice dated 20.11.2020 as well as the impugned order dated

05.11.2021 was passed. This Court finds it relevant to take note of that vide an order dated 10.12.2021, this Court had issued notice and granted some interim protection to the Petitioner.

¶7Today when the matter was taken up, Mr. S.C. Keyal, the learned counsel appearing on behalf of the GST Department have produced an order dated 18.08.2022 passed by the Principal Commissioner, Central GST and Central Excise, Commissioner, Dibrugarh. A perusal of the said order reveals that the Petitioner have been granted the special rate at the rate of 52% for the financial year 2009-10 & 2010-11, 55% for the financial year 2011-12, 64% for the financial year 2012-13, 49% for the financial year 2013-14, 52% for the financial year 2016-17 and 47% for the financial year 2017-18. However, vide the said order dated 18.08.2022, the Petitioner's claim in respect to fixation of special rate representing the actual value addition for the financial year 2014-15 was rejected being Page No.# 4/5 barred by para 3(i) of the Notification No. 20/2007-CE dated 25.04.2007.

¶8Taking into account that special rate have already been fixed and accordingly the impugned notice dated 20.11.2020 as well as the consequential order dated 05.11.2021 cannot coexist in view of the special rate having been fixed vide the order dated 18.8.2022 for which the impugned notice dated 20.11.2020 as well as the impugned order in original dated 05.11.2021 are set aside and quashed. It is however observed that the setting aside and quashing the impugned notice dated

20.11.2020 as well as the order in original dated 05.11.2021 shall not preclude both the Petitioner and the Respondents to take appropriate steps in terms with the order dated 18.08.2022 passed by the Principal Commissioner, Central GST and Central Excise, Commissioner at Dibrugarh.

¶9This Court further finds it relevant to take note of the submission of Mr. D. Saraf, the learned counsel for the Petitioner that vide the order dated 18.08.2022 passed by the Principal Commissioner, Central GST and Central Excise, Commissioner at Dibrugarh, the Petitioner's application for fixation of special rate for the year 2014-15 have been rejected without assigning any reasons.

¶10Be that as it may, it being a separate cause of action, the Petitioner would be at liberty to challenge the same, if so adviced.

¶11The order dated 18.08.2022 so produced by Mr. S.C.Keyal, the learned counsel for the GST is kept on record and marked with the letter "X". Page No.# 5/5

¶12With the above observations and directions, the instant petition stands disposed.

JUDGE Comparing Assistant

PageoNo.#o1/5 GAHC010205342021 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/6613/2021o M/SoFERRAoTECHo AoPARTNERSHIPoFIRMoREGISTEREDoUNDERoTHEoINDIANoPARTNERSHIPo ACT,o1932oANDoHAVINGoTHEIRoREGISTEREDoOFFICEoAToBHIMPARAoGAON,o P.O.oPAKARIJAN,oTINSUKIA-786125,oASSAMoANDoREPRESENTEDoTHROUGH THEIRoAUTHORIZEDoPARTNERoMRoUMESHoPATWARI,oAGEDoABOUTo54o YEARS,oSONoOFoGOVINDLALoPATWARI. VERSUSo THEoUNIONoOFoINDIAoANDo2oORS.o REP.oBYoTHEoSECRETARYoTOoTHEoGOVT.oOFoINDIAoMINISRYoOFoFINANCE,o DEPARTMENToOFoREVENUE,oNORTHoBLOCK,oNEWoDELHI-110001. 2:THEoPRINCIPALoCOMMISSIONER oCGSToCOMMISSIONERATE oDIBRUGARH oGUWAHATI oMILANoNAGARo'F'oLANE oP.O.oC.R.oBUILDING oDIBRUGARH-786003 oASSAM 3:THEoASSISTANToCOMMISSIONERoOFoSERVICEoTAX oCENTRALoGSToDIVISION oTINSUKIAoDIBRUGARHoROAD oTINSUKIA-786123 oASSAo For1the1Petitioner111111111111111111111111:1Mr.1D.1Saraf,1Advocate.11111 Page No.# 2/5 For the Respondents : Mr. S.C. Keyal, SC, GST. BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH