MC 479/2010 BEFORE THE HON’BLE MR. JUSTICE I.A. ANSARI IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM & ARUNA CHAL PRADESH) MISC CASE NO. 479 of 2010 in WP(C) NO. 591/2008 1. M/S. Dharampal Satyapal Ltd. (Guwahati and Agartala Units) A company incorporated under the Indian Companies Act, 1956, with its registered office at 1711 S.P. Mukharjee Marg, Delhi-110 006. 2. M/s. Dharampal Premchand Ltd (Agartala Unit), A company incorporated under the Indian Companies Act, 1956, with its registered office at 4873, Chandni Chowk, Delhi-110 006. 3. M/s. Satyapal Shivkumar (Agartala Unit), A registered partnership firm having its head office at 7/355, Naya Bans, Delhi - 110 006 ---- APPLICANTS -V e r s u s- 1. The Union of India Ministry of Finance, Department of Revenue, New Delhi. 2. Commissioner of Central Excise, Morello Compound, MG Road, Shillong. 3. The State Bank of India, New Guwahati Branch, Guwahati-21. Through its Chief Manager. 4. The Branch Manager, State Bank of India, Main Bazar Branch, Agartala, Tripura. ----- RESPONDENTS BEFORE THE HON’BLE MR. JUSTICE IA ANSARI Advocate for the applicants : Mr. A. Roy, Advocate, Mr. S.K. Medhi, Advocate, Ms. P. Das, Advocate Mr. RK Bharali, Advocate Advocate for the respondents: Mr. K.N. Choudhury, Sr. Advocate, Mr. KK Dey, Advocate, Date of hearing :: 11.05.2010 Date of order :: 29.06.2010. O R D E R By a common judgment and order, dated 06.01.2010, three writ petitions, namely, WP(C) No. 591/2008, 1048/2008 and 2814/2008, were allowed to the extent as were indicated in the said judgment and order. All these three writ petitions arose o ut of actions, which had been taken by the respondents/authorities concerned on their interpretation of certain notifications, which were issued, from time to t ime, by the Government of India, Ministry of Finance, Department of Revenue, gra nting exemption from payment of excise duty and additional duty of excise to cer tain specified classes of goods, manufactured in the specified areas of the seve n North-Eastern States, the writ petitioners’ industrial units having been set u p under two notifications bearing No.32/99-CE and 33/99-CE, both, dated 08.07.99 , whereunder the Central Government, as indicated hereinbefore, had granted exem ption. 2. The material facts, giving rise to this miscellaneous application, may, in a nutshell, be set out as under: (i) By Notification No. 45/99-CE, dated 31.12.1999, the Central Government amended its earlier said two Notifications, both dated 08.07.1999, and excluded all tobacco related products, including pan masala, from the purview of exemptio n from payment of excise duty, or additional duty of excise. By Notification, d ated 17.01.2000, the Central Government restored the exemptions, but, later on, the exemptions, so granted, were, once again, withdrawn by the Central Governmen t by Notifications, dated 22.01.2000 and 01.03.2001. Thereafter, the Parliament enacted Section 154 of the Evidence Act, 2003, stipulating therein that the Cen tral Government has the power to amend the two Notifications, dated 08.07.1999, aforementioned with retrospective effect. What it signified was that the Centra l Government became empowered to recover the money, already refunded to the manu facturers, in terms of its schemes of exemption as had been embodied in its earl ier two Notification Nos. 32/99-CE and 33/99-CE, both dated 08.07.1999. (ii) Though the exemptions, granted under the said two notifications, dated 0 8.07.2009, were, at some stages, as indicated above, withdrawn, the exemptions, which had been earlier withdrawn, were, once again, restored, in respect of cert ain excisable goods including pan masala, by Notification No. 69/2003 CE, dated 25.08.2003, to the extent of 50% of the duty payable. (iii) The above scheme of partial restoration, covered by Notification, dated 2 5.08.2003, stipulated thus: (a) The scheme would be available only in respect of those units, which woul d manufacture specified goods, including pan masala; (b) The manufacturing unit must be located in any of the seven North Eastern States, namely, the State of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizo ram, Nagaland or Tripura; (c) The scheme would be applicable to only those units, which had commenced commercial production on or after 24-12-1997, but not later than 28-02-2001; (d) The unit should have had continued its manufacturing activities after 28 -02-2001 and should have had availed the benefits under earlier Notification Nos . 32/99-CE and 33/99-CE, both dated 08.07.1999; (e) The sum of duty payable, but for the exemption, would have to be utilize d by the manufacturer only for ’investment’ in ’plant and machinery’ in a manufa cturing unit; (f) The said ’investment’s were to be made before expiry of a period of six months from the end of each quarter; (g) The manufacturer was obliged to furnish, to a Committee, within one mont h of the expiry of the period of six months as described hereinbefore, details o f the investments made by the manufacturer; (h) The said Committee was to consist of the Chief Commissioner of Central E xcise, Shillong, the Principal Secretary of the Department of Industry of the St ate in which the unit was located and the Principal Secretary of the Department of Industry of the State in which the investment was made; (i) The manufacturer was required to prove to the satisfaction of the Commit tee that the investment was made, in plant and machinery, in a manufacturing uni t located in any of the seven States aforementioned; and, (j) Finally, once the Committee (which came to be known as the Investment Ap praisal Committee, in short, ’the IAC’) was satisfied that the ’investment’ was made in ’plant and machinery’, in a manufacturing unit in terms of the Notificat ion, dated 25.08.2003, aforementioned, it was to issue a certificate to this eff ect to the manufacturer within a period of three weeks after the period of one m onth described above; (k) The certificate, granted by the IAC, was to be produced by the manufactu rer, within a period of two weeks from the date of issue of the certificate, to the jurisdictional Central Excise Officer; (l) The ’investment’, made under this Notification, dated 25-08-2003, was re quired to be for a period of ten years from the date on which the ’investment’ w as made. (iv) While the petitioners’ units stood covered by the Notification, dated 25 .08.2003, aforementioned and were eligible to receive benefit of exemption from payment of excise duty, or additional duty of excise, in terms of the Notificati ons, issued, in this regard, by the Central Government, another Notification, No . 8/2000/4-CE, dated 21.01.2004, was issued by the Central Government, wherein a scheme, for complete exemption from payment of excise duty or additional duty o f excise, was made available subject to compliance of certain new conditions by the manufacturers. The Notification, dated 21-01-2004, expanded the scope of exe mption by making it clear that this exemption, to the extent of 100%, would be a vailable not only to those manufacturers, who make their investment in ’plant an d machinery’, in a manufacturing unit, located in any of the seven States of the North Eastern Region, but also to the one, who has a manufacturing unit, locate d in any of the said seven States, and who makes investment in ’infrastructure’ or ’civil work’ or ’social projects’ in any of these States. The procedure for r eceiving exemption, however, remained same as embodied under the earlier Notific ation, dated 25-08-2003. (v) In effect, thus, with the coming into force of the Notification, dated 21.01 .2004, not only the extent of ’exemption’, but also the scope of ’investment’ st ood expanded inasmuch as a manufacturer became eligible to receive exemption fro m payment of excise duty, or additional duty of excise, if he could prove, to th e satisfaction of the IAC, that the ’investment’ was made either in ’plant and m achinery’ in a manufacturing unit, located in any of the States aforementioned, or that the ’investment’ was made, in ’’infrastructure’’ or ’civil work’, or a ’ social project’, in any of the said States; (vi) By, however, yet another Notification, dated 09-07-2004, a series of proced ural amendments were introduced to the Notification, dated 21-01-2004, aforement ioned. (vii) The subsequent Notification, dated 09-07-2004, stipulates: (a) That the sum, equal to the excise duty that was payable, but for the exempti on, would be deposited by the manufacturer, within 60 days from the end of the q uarter, in an Escrow Account to be opened by the manufacturer in a bank authoriz ed for excise duty collection; (b) The Notification provides that operations, including withdrawals from, and c losure of, the said Escrow Account, shall be made with the prior approval of the jurisdictional Commissioner of Central Excise, who has been given the onus of granting approval to such withdrawal on taking into account the ’conditions’, sp ecified in the said Notification, dated 09.07.2004; (c) The jurisdictional Commissioner is also enjoined to safeguard, while grantin g such approval as aforesaid, interest of revenue; (d) The Notification, dated 09.07.2004, requires the manufacturer to invest the amount, deposited in the said Escrow Account, within two years from the date of its deposit and the amount, withdrawn from the Escrow Account, has to be uti lized for the purposes specified within 60 days of its withdrawal; (e) The manufacturer is also required to submit a quarterly statement, within si xty days of the end of the quarter, to the IAC, namely, Investment Appraisal Com mittee, consisting of the Chief Commissioner of Central Excise, Shillong, the Pr incipal Secretary of the Department of Industry of the State concerned in which the unit is located and the Principal Secretary of the Department of Industry of the State in which the investment is made; (f) The manufacturer is also required to furnish, within one month of the expiry of the said period of two years, all details of the ’investment’ made, to the I AC; (g) If the IAC is satisfied that the ’investment’ has been made in accordance wi th the conditions embodied in the said Notification, dated 09-07-2004, it has to issue a certificate to the manufacturer within a period of one month from the d ate of receipt of the details (described hereinbefore) by the manufacturer. (viii) Finally, Condition (EA) of the said Notification No. 28/2004-CE, dated 09 .07.2004, clarifies that if the manufacturer fails to make the deposit or invest the amount specified within the stipulated period and in accordance with the No tification, then, the duty, which is equivalent to the amount not deposited or i nvested, shall be ’recoverable’ from the manufacturer along with interest thereo n at the rate specified under Section 11 AB of the Central Excise Act, 1944 and, further, without prejudice to any action that may be taken under the provisions of the said Act, or under any law, for the time being, in force, by ’forfeitur e’ of amount in the said Escrow Account. (ix) Pursuant to the Notification, dated 21.01.2004, as amended by Notificati on, dated 09.07.2004, the petitioners entered into tripartite escrow agreements, with their bankers and jurisdictional Commissioners, whereunder the petitione rs’ bankers were appointed as Escrow Agents. It is stipulated in the agreements that operations, including withdrawals from, and closure of, the said Escrow Acc ounts, are to be made with the prior approval of the jurisdictional Commission er of Central Excise, Shillong. It has also been provided therein that if the ba lance amount, lying in the Escrow Account, is not re-invested in terms of the No tification No.8/2004-CE, dated 21.01.2004, as amended by Notification No.28/2004 -CE, dated 09.07.2004, the Petitioner No.1 shall bind itself to pay, on demand o f the Deputy Commissioner of Central Excise or Assistant Commissioner of Central Excise, as the case may be, to the extent of duty, which is equal to the amount not re-invested along with interest thereon at the rate specified under section 11AB of the Central Excise Act, 1944, from the amount lying in balance in the E scrow Account. The said Escrow Agreement, dated 21.06.2005, further provides th at where the Petitioner No.1 fails to make the deposit or does not invest the a mount specified in condition (B) of the Notification No.8/2004-CE, dated 21.01.2 004, as amended by Notification No.28/2004-CE, dated 09.07.2004, as detailed in condition (EA), the Commissioner, Central Excise, Shillong, shall have the right to forfeit the amount in the said Escrow Account and, in that event, the Escrow Agent shall release the amount to the jurisdictional Commissioner of Excise t o the extent of ’forfeiture’ made. 3. On the ground that requisite investment certificates had not been produc ed by the petitioners, notices were issued to the petitioners’ industrial units asking them to show-cause as to why on their failure to comply with the requirem ent of production of investment certificates within the specified period, divers e sums of money, mentioned in the said show-cause notices, which were equivalent to the exemption of the duty availed of by the petitioners, be not compelled to be paid back by the writ petitioners with such interest as had accrued thereon. The writ petitioners replied to the said show-cause notices. 4. Following the writ petitioners’ replies to the said notices and without making any further communication with the writ petitioners, the authorities of t he Excise Department got diverse sums of money transferred from the Escrow Accou nts of the petitioners, maintained with their bankers, by way of recovery of tho se amounts, which were claimed under the said show-cause notices. This apart, di rections were also issued to the petitioners’ bankers by the authorities of the Central Excise freezing operation of the writ petitioners’ Escrow Accounts. Thes e actions of the respondents came to be challenged by way of a writ petition, wh ich gave rise to WP(C) No.591/2008. 5. To be more specific, it may be mentioned that by filing the writ p etition, which gave rise to WP(C) No.591/2008, the applicants herein, as writ pe titioners, while impugning the actions and omissions of the respondent No.2, nam ely, Commissioner of Central Excise, Shillong, sought for, inter alia, issuance of appropriate writ(s) setting aside and quashing the respondent No. 2’s action of (i) appropriation of diverse sums of money, such as, amounts of Rs. 57,61,3 7,536/-, Rs.28,55,14,172/- and Rs.30,35,24,690/- from the Escrow Accounts of the writ petitioners, and (ii) freezing of the various Escrow Accounts of the petit ioner. The petitioner also sought for directions to be issued to the respondent No. 2 to consider and decide various applications of the petitioners, pending w ith respondent No.2, seeking withdrawal of funds for making various investments, including the writ petitioners’ application for withdrawal of money for making investment on their proposed five-star hotel. 6. By judgment and order, dated 06.01.2010, this Court allowed, as already indicated above, the writ petition with the reliefs as indicated in the decision itself. The operative part of the order read as under: (i) The impugned actions taken by respondent No.2, namely, Commissioner of C entral Excise, Shillong, in ’forfeiting’ the sums of Rs.57,61,37,536/- (Rupees F ifty Seven Crore Sixty One Lac Thirty Seven Thousand Five Hundred Thirty Six onl y), Rs.28,55,14,172/- (Rupees Twenty Eight Crores Fifty Five Lakhs Fourteen Thou sand One hundred and Seventy Two) and Rs.30.35.24,690/- (Rupees Thirty Crores Th irty Five Lakhs Twenty Four Thousand Six Hundred and Ninety only) from the Escro w Accounts of the petitioners maintained by the respondent Nos.3 and 4, namely, State Bank of India, New Guwahati Branch, Guwahati, and Branch Manager, State B ank of India, Main Bazaar Branch, Agartala, respectively, and the directions giv en, or requests made, by the respondent No.2 to transfer the said amounts of mon ey from the Escrow Accounts of the petitioners maintained by the respondent Nos. 3 and 4 towards payment of duty and the consequential actions, taken by the resp ondent Nos.3 and 4, in carrying out the directions so given, and/or the request so made, by the respondent No.2 are hereby set aside and quashed. (ii) The impugned actions of the respondent No.2, namely, Commissioner of Ce ntral Excise, Shillong, in freezing the Escrow Account Nos. 10566984064 and 1056 6984086 of the petitioner No.1, Escrow Account No. 10815025848 of the petitioner No.2 and Escrow Account No. 10815028838 of the petitioner No.3 maintained by th e respondent Nos.3 and 4 and/or prohibiting the petitioners from operating their respective accounts aforementioned and/or directing the respondent Nos.3 and 4 not to let the petitioners operate their respective accounts aforementioned are hereby set aside and quashed and, in consequence thereof, it is further directe d that while computing the period of investment of two years from the date of de posit under the Notification, dated 21.01.2004, read with the Notification, date d 09.07.2004, the period, during which the said accounts remained frozen and ino perative, shall be excluded. (iii) The respondent No.2 is hereby directed to consider, and decide, in the l ight of the discussions held above within a period of one month from today all t he applications made by the petitioners, seeking withdrawal of money from their respective Escrow Accounts for the purpose of making investments on their variou s projects, including the project of five star hotel. (emphasis suppl ied) 7. By filing this application, the applicants, who were petitioners in WP(C ) No. 591/2008, contend that although more than a month has elapsed since the wr it petition was disposed of, there has been no development as far as the impleme ntation of the directions given by the Court are concerned. Assigning the reason for non-implementation of the order, the applicants submit that pursuant to the bifurcation and jurisdiction of the Commissioner of Central Excise, Shillong (w hile the writ petition was still under consideration by this Court), the applica nts have approached the Chief Commissioner of Central Excise and respective juri sdictional Commissioners of Central Excise, at Shillong and Guwahati, requesting them to implement the directions given by this Court. 8. According to applicants, the implementation of the directions given by t his Court, in the said writ petition, need some clarification so that the order may be implemented in letter as well as spirit. 9. The applicants have sought for clarification as under: i. That while computing the period of investment under the notification, the ti me period from 31.07.2007, till the time appropriated amount is credited in the Escrow Account of the applicant be excluded. ii. The applicants be permitted to file fresh withdrawal application for making investments under the notification of the amounts to be made available to them p ursuant to the judgment and order, dated 06.01.2010, of this Court. iii. The interim order dated 30.09.2008 allowing the applicants to proceed with construction of the said hotel be made final and absolute and the applicants be allowed to withdraw the amount already spent on the hotel project out of its own fund during the pendency of the writ petition from the Escrow Funds. 10. Resisting the above application, respondents have filed their objection, wherein they have contended, inter alia, that when a writ proceeding is termina ted by final disposal thereof, the writ proceeding cannot be re-opened by means of a miscellaneous application. Reference, in this regard, is made by the respon dents to the case of State of U.P. Vs. Brahma Datta Sharma, reported in (1987) 2 SCC 179. In their objection, the respondents concede that in its subsequent dec ision, in K.A. Ansari and another Vs Indian Airlines Limited, reported in (2009) 2 SCC 164, the Supreme Court, referring to its earlier decision, in Brahma Datt a Sharma (supra), has, indeed, held that there is no prohibition for a party to apply for clarification of an order if the order is ambiguous. The respondents, however, contend that the prayers, contained in the present miscellaneous applic ation, have the potential to obtain further order/directions of this Court on is sues, which stood concluded by judgment and order, dated 06.01.2010, aforementio ned inasmuch as this Court might possibly have not consciously granted the relie fs, which the applicants are, now, seeking to obtain with the help of the presen t misc. application. In such circumstances, according to the respondents, the mi sc. application would, if allowed, have the effect of passing further directions , which had not been given in the decision of this Court, while disposing of the said writ petition, and such directions would be contrary to the law laid down in Brahma Datta Sharma (supra) read with K.A. Ansari (supra). 11. The respondents also contend that an impression is sought to be given by the applicants that the directions, given by this Court, while disposing of the said writ petition, have not been implemented due to some vagueness, which are, now, sought to get clarified by making the present application, whereas such cl arifications, if required, could have been sought for by the respondents themsel ves. The respondents further contend that they have already filed a writ appeal against the judgment and order, dated 06.01.2010, though the same has not yet be en listed. 12. I have heard Mr. A. Roy, learned counsel, for the applicants, and Mr. KN Choudhury, learned Senior counsel, appearing on behalf of the respondent Nos.1 and 2. I have also heard Mr. K.K. Dey, learned counsel, for the respondent Nos.3 and 4. 13. While considering this application, it needs to be borne in mind that th ough the respondents resisted the writ petition, this Court, by its judgment and order, dated 06.01.2010, as indicated above, allowed the writ petition by setti ng aside the respondents’ impugned actions of getting transferred diverse sums o f money from the Escrow Accounts of the writ petitioners towards recovery of all eged dues of excise duty and additional duty of excise. This Court also set asid e the respondents’ actions of freezing the writ petitioners’ Escrow Accounts. 14. However, as the scheme of exemption envisaged that in order to make a ma nufacturer entitled to claim exemption from payment of excise duty and/or additi onal duty of excise, the manufacturer was required to make investment by withdra wing money lying in his Escrow Accounts, but for the purpose of withdrawing his money from the Escrow Accounts to make investment, he was to make an applicatio n, for withdrawal of money from his Escrow Account, to the jurisdictional Commis sioner and it was only on being so permitted, by the jurisdictional Commissioner , that the manufacturer could have made investment and such investment was to be examined by an Investment Appraisal Committee (in short, ’the IAC’) and, if all owed by the IAC, then and then only the manufacturer was to receive exemption of such amounts as may have been specified by the IAC as investment made by the ma nufacturer, this Court took the view, for reasons assigned, that various time-fr ames for taking all these actions, which the scheme envisaged, such as, making o f application for withdrawal, making of investment and certification of investme nt by the IAC, were directory in nature and, accordingly, ordered the respondent s to consider, within a period of one month from the date of delivery of the jud gment, all the applications, which had been made by the writ petitioners, seekin g withdrawal of money from their Escrow Accounts for the purpose of making inves tments on their various projects including the project of a five-star hotel. 15. As the petitioners had not been able to make investments due to the fact that their Escrow Accounts had remained frozen and the withdrawal applications had not been disposed of, and/or were incorrectly disposed of, the Court further directed that while considering the applications for withdrawal, the periods, d uring which the Escrow Accounts, in question, had remained frozen, shall be excl uded so that the withdrawal applications do not lapse and the investments, sough t to be made, were not denied due to the