23.3.2007 lN THE HIGH COURT OF. SIKKiM OFIDEF} SHEET Writ I>etit.ion (C) Unicorn Industries Versus Union of India & ore. Order with Signature ........... „..No. 4 of 2007 Petitioner/ Appe[lant '~ Flespondent Hesent: Mr. A. K. Upadhyaya, Sr. Advocate with. Miss Manita Pradhan, Advocate for the Petitioner. Mr. Karma 'Thinlay, Central Govt. Standing Counsel for the U.O.I. Mr. J.B. Pradhan, Govi. Advocate for the State-Respondents. The application calling for a have not Opposition' wit petition and the stay are disposed of finally without affidavits. As the respondents had a chance of filing an tlie allegations in the petitions are not to be taken as admitted by them to any extent in any regard. The petitioner is aggrieved by an Order dated the 2nd of January, 2007 (Page 51 of the wit petition) whereby a sum of Rs.73,00,000/- (Rupees seventy three lakh) appl.oxinately along with interest was clained back from the writ petitioner as money to be credited back by them. The writ petitioner submits that on the basis of two Notifications dated 17.2.2003 Office Note as to :, action (if any) taken on Order i( /,.?...L Order with Signature Office Note as to action (if any) taken on Order of the writ petition) the Central Govt. exempted payment of Excise Duty in cchaln cases, whic.h cover the wit petitioner, for a period of ten yearsrfrom the setting up of an industry in Silddm;that the tax holiday was being given by way of this scheme, that the wit petitioner (and others) would have to pay the otherwise leviable Excise Duty, but they would be ref(mded the sum on an appropriate application. According to the writ petitioner this refund was made but is being wrongly clained back by the respondents. This is not strictly a Section 11 or llA demand under the 1944 Act but is a demand only related to these Sections. In any event, a final demand of this nature cannot be made like a bolt from the blue without hearing the writ petitioner at all. As such, the notice dated 2.1.2007 cha]l only be treated as a notice to the writ petitioner to show cause why the vrit petitioner should not pay back the demanded sum along with the demanded interest. 'Ihe notice will be answered by the writ petitioner within a period of four weeks from date hereof. Thereafter, the parties will take steps in accordance with law. The respondents and each of them and tbeir officers, agents and employees are restrained permanently from treating the said demand dated 2.1.2007 as / 'fLl,`` ¥e`Q t'_Dateof' Order with Signature Office Note as toaction(ifany) Lorder Order - taken on C)rder (I a final demand or as a demand on which any - -I(; compulsive steps for recovery be taken whether under Section 142 of the Customs act or otherwise. • This order is final but without prejudice to the richts and contentions of the parties in future matters and in regard to future orders, if any, to be passed by the respondents in regard to this matter. Whether the writ petitioner is entitled to tax holiday at all or not will have to be decided on the basis of a reasoned order after hearing the wit petitioner's representation and future steps will be taken by the parties in accordance with law and the coITect interpretation of it.(Ajoy Nath Ray, CU) *inifJ,