Ruchi Soya Industries Limited vs C.C.E. -Kutch (Gandhidham)

The issue involved is that whether the appellant is entitled for refund for the 100% payment of duty made under Notification 39/01-CE from PLA or

to the extent of 75% in terms of amended Notification No. 16/08-CE and 36/08-CE.

Shri Dhaval Shah, Learned Counsel appearing on behalf of the appellant fairly submits that now the issue is covered by the Hon’ble Supreme

Court judgment in the case of Union of India vs VVF Ltd. 2020 (372) ELT 495 (SC).

Shri Vinod Lukose, Learned Superintendent (Authorized Representative) appearing on behalf of the Revenue raised a preliminary objection that as

against the rejection of refund claim on the issue involved in the present case, appellant had not filed any appeal before the Commissioner (Appeals).

The appeal filed before the Commissioner was only in respect of Education Cess and Secondary Higher Education Cess, therefore, the rejection of

refund in respect of differential basic excise duty attained finality as per the order in original, therefore, the appeal in respect of said refund before

Tribunal is not maintainable. He further submits that on the merit of the case, the issue has been finally decided by the Larger Bench of the

Hon’ble Supreme Court in the case of VVF Limited (Supra). Therefore, on both the count, appeals are not sustainable, hence need to be

dismissed.

I have carefully considered the submissions made by both the sides and perused the records.

I find that on the preliminary objection raised by the Learned Authorized Representative, on careful reading of the Commisisoner (Appeals) Order, I

find that the appellant have not filed any appeal against the rejection of refund of differential basic excise duty consequently the Learned

Commissioner (Appeals) has not given any finding. The appellant have filed the appeal before Commissioner (Appeals) exclusively in respect of

Education Cess and Secondary Higher Education Cess which has been allowed, therefore, in my view, there is nothing left in the impugned order to

challenge before this Tribunal. Hence the appeal is not maintainable on this ground itself. However, on merit also, the Hon’ble Supreme Court in

the case of VVF Limited (supra) held that the amemdment Notification whereby the refund was restricted to 75% is valid and legal, therefore, the

appellant is entitled for the refund in respect of Basic Excise Duty only to the extent of percentage prescribed therein and not for the full amount of

duty paid from PLA. The relevant portion of the Apex Court judgement is as under:

“16. Under the circumstances, the respective High Courts have committed a grave error in quashing and setting aside the subsequent

notifications/industrial policies impugned before the respective High Courts on the ground that they are hit by the doctrine of promissory

estoppel and that they are retrospective and not retroactive. Consequently, all these appeals are ALLOWED. The impugned Judgments and

Orders passed by the respective High Courts, which are impugned in the present appeals, quashing and setting aside the subsequent

notifications/industrial policies impugned in the respective writ petitions before the respective High Courts, are hereby quashed and set

aside. Consequently, the original writ petitions filed by the respective original writ petitioners before the respective High Courts challenging

the respective subsequent notifications/industrial policies stand dismissed and for the reasons stated hereinabove, the challenge to the

respective subsequent notifications/industrial policies impugned before the respective High Courts FAIL. However, it is CLARIFIED that the

present judgment shall not affect the amount of excise duty already refunded, meaning thereby, the cases in which the excise duty is already

refunded prior to the subsequent notifications/industrial policies impugned before the respective High Court, they are not to be reopened.

However, it is further CLARIFIED that the pending refund applications shall be decided as per the subsequent notifications/industrial

policies which were impugned before the respective High Courts and they shall be decided in accordance with the law and on merits and as

per the subsequent notifications/industrial policies impugned before the respective High Courts. All these appeals stand disposed of

accordingly. NO COSTS.

16.1 Now, so far as the Civil Appeals @ SLP © Nos. 14751/2013, 14752/2013 and 14753/2013 are concerned, the challenge to

Notification Nos. 16/2008-C.E. and 33/2008-C.E. FAIL and the Excise authorities have in fact allowed the refund of excise in line with the

subsequent Notification Nos. 16/2008 -C.E. and 33/2008-C.E. which are now upheld by this Court, the present appeals deserve to be

dismissed and are accordingly dismissed. NO COSTS.â€​

In view of the above judgement of the Hon’ble Supreme Court, the issue is settled against the assessee. Therefore, the appellant is not entitled

for the refund of differential basic excise duty. Accordingly, the appeals are dismissed.

(Dictated and pronounced in the open court)