Wp 9450.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9450/2010 Sharda Motor Industries Ltd. A company incorporated under the provisions of the Companies Act, 1956 having its registered office at D-188 ,Okhla Industrial Area,Phase -1 New Delhi 110 020 Petitioner VS. 1 Union of India through the Secretary,Ministry of Finance, Department of Revenue North Block, New Delhi-110 001 2 The Chief Commissioner Large Tax Payer Unit ,NBCC Plaza, Pushp Vihar, Saket, New Delhi 110017 3 The Commissioner, Central Excise & Service Tax Large Tax Payer Unit, NBCC Plaza,Pushp Vihar, Saket ,New Delhi 11017 4 The Commissioner of Central Excise & Customs, Kendriya Rajaswa Bhavan, R.G.Gadkari Chowk,Old Agra Road, Nashik 422 002 5 The Deputy Commissioner Central Excise & Service Tax Large Tax Payer Unit,NBCC Plaza,Pushp Vihar Saket,New Delhi 110 017 Respondents Wp 9450.10 2 Mr.V.Sridharan a/w Mr.Prakash Shah i/b PDS Legal for Petitioner Mr. A.S.Rao a/w Mr.S.D.Bhosale for respondents CORAM- J.P.DEVADHAR ,AND MRS.MRIDULA BHATKAR,JJ. RESERVED ON -2nd FEBRUARY,2011 PRONOUNCED ON -17th FEBRUARY,2011 J U D G M E N T (Per Mrs.Mridula Bhatkar,J.) . Rule , returnable forthwith. By consent of the parties the petition is heard finally at the stage of admission. 2 By way of this Petition the petitioner company seeks direction under Article 226 of the Constitution of India to quash and set aside the letters dated 14/10/2009 and 13/8/2010 as well as show cause notice dated 4/2/2010 issued by the Dy. Commissioner of Central Excise and Service Tax (L.T.U.) ,respondent no.5, holding that three manufacturing units and one trading unit of the petitioner located at Nasik , Kanchipuram and Singur are not covered under Large Tax Payer’s Unit ( for short LTU) scheme . The petitioner further seeks declaration that these three units and the trading units of the petitioner are covered by LTU . 3 Before dealing with the submissions of learned counsel of both Wp 9450.10 3 the sides it is necessary to state in brief the scheme of LTU which was introduced in India in the year 2006. LTU is a facility made available by the Government to facilitate the trade and to boost the industrial development . Concept of LTU is not novel to the international practice. Our Finance Minister in his speech on budget proposal of 2005-2006 announced establishment of LTU so that the industries and corporate sector may avail of single window service and such LTU would be set up in major cities . Interalia the State issued notifications no.18/06 (CE)/(NT)2 , 22/006 CE(NT) and 28/2006 S.Tax all dated 30/9/2006 providing jurisdictional authority for LTU and made changes in the Central Excise Rules ,2002 Cenvat Rules 2004 and service tax rules 1994 . A new rule 12(b)(b) has been added in the Central Excise Rules,2002 , a Rule 12(a) was inserted in Cenvat credit Rules 2004 and similarly Rule 10 has been inserted in Service Tax Rules 1994. On 3/10/2006 first LTU was set up at Banglore. 4 As per the notification no.20/2006 CE (NT) dated 30/9/2006 it was mandatory for the person applying for LTU must must pay the duties of excise more than five crores in cash in the previous year and that has been accepted by LTU authorities in June, Wp 9450.10 4 2008. In order to avail of LTU facility it was necessary for the unit to fill up the consent form to the Chief Commissioner LTU and if found eligible then the Chief Commissioner, LTU to issue an acceptance letter. Such process of acceptance would not normally take more than seven days . The scheme is a benevolent amendment leading to increase satisfaction amongst the tax payer by reducing their complaint and transaction cost and bringing more efficiency in tax administration. Therefore, it is expected from the Chief Commissioner, LTU to play a practical role in the administration of LTU . 5 In the present case the petitioner filed its consent for being registered as an LTU on 17/3/2006 and supplied all the six manufacturing units which were in existence on the date of consent. The Chief Commissioner of Central Excise,LTU by letter No. CC/LTU/2008-2009/19 , dated 11/6/2008 sent a letter of acceptance of the consent given by the petitioner to be administered as an LTU Delhi. No further information was called by the Chief Commissioner of Central Excise and without ascertaining the then existing status of the working units of the petitioner unconditional acceptance was given. Interregnum the petitioner set up more units at Kanchipuram in Wp 9450.10 5 the State of Tamil Nadu , Nasik in the State of Maharashtra and at Singur ,in the State of West Bengal. Thus, the petitioner as on 2/6/2008 was running nine manufacturing units and one trading unit , all registered with the respective jurisdictional central excise authorities. The manufacturing unit behind CEAT company at Satpur ,Nasik Industrial Estate had already been functioning . It was understood that all the manufacturing and trading units came under LTU as a single entity .The petitioner was fallowing prescribed procedure for payment of tax and also file monthly returns with the proper officers of the LTU. On 14/10/2009 the petitioner received letter from Chief Commissioner LTU,Delhi regarding three manufacturing units and one trading unit which came into existence of which the details were not furnished by the petitioner and they were not registered. The Commissioner of Central Excise,LTU by way of show cause notice dated 17/12/2009 sought to disallow the total credit on the ground that the unit at Kanchipuram and Nasik were not mentioned in the original consent form filed by the petitioner in March, 2006 and therefore, they are not part of the LTU. Further it was communicated by letter dated 7/1/2010 by the Chief Commissioner ,LTU that the facility of transfer of credit is effective only after the receipt of the letter by the assessee of the consent and Wp 9450.10 6 the transfer of credit of the assessee on 27/11/2008 was incorrect. Nasik unit of the petitioner was also served by show cause notice on 4/2/2010 by which the Commissioner sought to disallow Cenvat credit amounting to Rs.1.73 crores which was availed during the period from January, 2009 .The petitioner filed detailed reply to the show cause notice in April, 2010 contending that Kanchipuram and Nasik units after March, 2006 should be treated as a part of LTU and, therefore, Cenvat credit was properly transferred. However, on 13/8/2010 LTU sent a letter stating that Nasik unit does not fall under the jurisdiction of LTU Delhi and E.R.returns filed by Nasik Unit from September , 2009 to July, 2010 were forwarded to the Dy.Commissioner of Central Excise ,Nasik. The petitioner filed petition on 9/9/2010 before the Commissioner of Central Excise ,LTU seeking an order to include the units at Nasik and Kanchipuram under LTU with immediate effect and also filed this petition. 6 Learned counsel Mr.Shridharan appearing for the petitioner submitted that from CBEC web site he procured information about the function, structure and procedure of LTU. In Asia 13 countries have established LTU at different points of time and those LTUs have achieved good success as it increased Wp 9450.10 7 satisfaction amongst the tax payers. Learned counsel pointed out that the petitioner has satisfied the major condition of the notification that the petitioner had paid the duties of excise of more than Rs.5 crores in cash in the previous year therefore, the petitioner was found eligible to be accepted as a part of LTU. He argued that the respondents have given the acceptance on 11/6/2006 to the consent letter dated 17/3/2006 . Though the details of the new units which started functioning in between the submission of the consent and the acceptance , were not included in the consent letter; were not suppressed . He submitted that the LTU authorities were corresponding with the units periodically for various information and thus, these new units were treated as a part of LTU. Learned counsel further submitted that the new units were also registered with their jurisdictional authorities, but these new units should be deemed to be a part of LTU from the original date of acceptance. He argued that refusing new units to be a part of LTU is a mere technicality and the Chief Commissioner of LTU ought to have used his discretion in favour of the petitioner in view of the object for which the facility is provided . To support his contentions he relied on the judgment of the Supreme Court in Mangalore Cehmicals and Fertillizers Ltd. Vs. Deputy Commissioner of Commercial Taxes , 1992 Supp (1) SCC Wp 9450.10 8 21. 7 Mr.Rao, learned counsel appearing for the respondents in reply submitted that the petitioners have failed in supplying all the details about opening of new units at Nasik ,Kanchipuram , Singur . It was necessary for the petitioner to communicate the details about working of these three units to the Chief Commissioner of LTU. The consent was obtained for seven units and therefore, the acceptance was also given for those units which were mentioned in the consent letter. The names and the details of these three units were not mentioned and furnished to the Chief Commissioner of LTU so the respondents have taken a correct decision as not to recognize these three units as a part of LTU and therefore, the action of the respondent is justified. 8 The petitioner admittedly is a LTU and operating its accounts since 2006 for which petitioner has received the acceptance of the respondent. It is not disputed by the petitioner that the petitioner did not mention the name and the details of three new units which started operating after the submission of the consent letters for its other units. The action of the Chief Commissioner of LTU may Wp 9450.10 9 appear correct in holding that these three units at Nasik, Kanchipuram and Singur do not form a part of LTU for want of consent letter from the petitioner and the acceptance to these three units to operate as a part of LTU; however, the fact of some transactions of all the units and intimation to LTU by the petitioner cannot be over looked but has vital bearing over the issue. For instance earlier the petitioner has requested the transfer of the credit from Kanchipuram to other units. So also sought permission of LTU ,New Delhi for clearing vehicles containing scrap from Nasik unit. By letter dated 27/3/2009 the petitioner informed the Superintendent of Central Excise ,LTU ,New Delhi that they were transferring Rs.1 lac and Rs.20 Lacs between these two industries from Sharda Motor Nasik Industrial Plot No.112,MIDC to their other plant at plot no. 51 at Nasik which was behind CEAT company,Satpur, Nasik Industrial Estate by two letters dated 27/2/2009. The petitioner filed letter with the LTU furnishing a copy of original consent with the list of units registered with the Central Excise Authorities. The petitioner received letter from LTU on 11/9/2009 accepting the undertaking in form no.UT-1 in respect of Nasik Units in relation to the exports. Further the petitioner has intimated LTU authorities , New Delhi about the transfer of education cess and SHE cess from Nasik plot no.112 unit Wp 9450.10 10 to Nasik plot no.51 unit. It has also addressed to LTU authorities intimating about the transfer of Cenvat credit from Nasik Plot no.51 unit. A letter was sent by the Dy.Commissioner of LTU, New Delhi dated 11/9/2009 is addressed to the petitioner unit at Survey no.52/1 behind CEAT company, Nasik Unit informing that the letter of undertaking furnished by the unit in terms of notification for covering clearance of export has been accepted by the Dy. Commissioner of Central Excise and Service Tax LTU ,New Delhi. 9 Thus, the petitioner has intimated about the new units and the acceptance letter by the respondent in respect of Nasik unit puts the petitioner on a stronger footing . Once the respondent has accepted such communication and transaction of new units then the department cannot somersault and say that the revenue department was not aware of functioning of three new units of the petitioner, who is enjoying the facility of LTU for other units. It is made amply clear that the petitioner should have sent a separate consent letter of intimation about functioning of three units and should have obtained additional acceptance for these three new units to form a part of LTU. However, this is not an illegality so as to refuse the facility of LTU to the petitioners for new three units. Opening of three units appears to Wp 9450.10 11 be a continuous process of the development of the business of the petitioner and LTU facility is made available in India as referred in the speech of the Finance Minister in the year 2005 as a benevolent scheme. Therefore,though there is a procedural flaw on the part of the petitioners this irregularity is curable in the interest of the scheme and to refuse the benefit of the scheme to the petitioner is a hypertechnical approach .We are of the opinion that the action of the Chief Commissioner to refuse to accept new units as a part of LTU and issuing show cause notice to them regarding transfer of Cenvat credit is not tenable under the scheme. 10 Thus, in the present case,though the initial consent letter given by the petitioner related only to the six units,both the petitioner and the revenue since inception have proceeded on the footing that the petitioner had opted for the LTU facility not only for the six units but also in respect of all the other units set up subsequent to the initial consent letter. This is evident from the fact that since inception the petitioner has been filing ER-1 returns in respect of all the units (including the subsequently set up unit at Nashik) before the LTU at Delhi and even the LTU Delhi has treated that all the units of the petitioner are governed by the LTU at Delhi and in fact permitted Wp 9450.10 12 clearances for exports from the subsequently set up unit at Nashik. It is not in dispute that the local excise authorities apart from registering the new unit at Nashik have not administered the said unit on the footing that the unit was always administered by the LTU Delhi. It is only when the CBEC opined that specific consent/acceptance letter is necessary, show cause notice has been issued to the petitioner to deny the benefit of LTU to the unit set up after submitting the initial consent letter. It is not the case of the revenue that the subsequently set up units are not eligible to be administered by the LTU. The only grievance is that specific letter of consent has not been submitted in respect of the newly established units till 9/9/2010. In our opinion, the lapse, if any, being only technical and the LTU policy itself provides that the Chief Commissioner/Commissioner, LTU must play a pro active role in the administration of LTU and requires them to solve the problem that arises at the initial stage, in the facts of the present case all the units must be held to be governed by the LTU scheme since inception. 11 The argument of the revenue that this Court has no jurisdiction to entertain the Writ Petition is also without any merit. The unit in question is situated at Nashik, Maharashtra within the Wp 9450.10 13 jurisdiction of this Court. The said unit was initially administered by the LTU at Delhi and it is only as an afterthought the revenue is contending that the unit in question would not be governed by the LTU scheme for the period where there was no specific approval. If mere forwarding of the consent letter entitles the large tax payer to avail the benefits of the LTU scheme then the benefits of the LTU cannot be denied where the consent is impliedly given by submitting ER-1 returns regularly. The show cause noticed is issued by the LTU, Delhi to the petitioner’s unit at Nashik. Thus, in the facts of the present case, it cannot be said that this Court has no jurisdiction to entertain the Writ Petition filed by the petitioner to challenge the show cause notice issued by the LTU, Delhi to the unit of the petitioner set up at Nashik. 12 In the result, the show cause notice dated 4/2/2010 is quashed and set aside. The LTU, Delhi is directed to allow the benefit of LTU scheme to all the units of the petitioner since inception. Rule is made absolute in the above terms with no order as to costs. (MRS.MRIDULA BHATKAR,J.) (J.P.DEVADHAR,J.)