Hindustan Coco-Cola Beverage(P) Ltd vs Union Of India & Ors

The facts, in a nutshell, are that with a view to provide necessary impetus to the development of industries in the north-eastern region a new Industrial Policy Resolution was notified by the Government of India on 24.12.1997. In pursuance of the said policy, a Notification was issued on 8.7.1999 and thereafter further Notifications were issued on 29.06.2001 and 23.12.2002. Pursuant to the said Notifications, certain benefits were availed of by the assessees. At that juncture, The Finance Act, 2003 (for brevity “the Act”) was brought into force and by virtue of Section 153 of the Act certain Notifications were amended with retrospective effect from 08.07.1999, i.e. the date of original Notification which we have mentioned hereinabove.

After the amendment came into force, the Assistant Commissioner, Central Excise, Jorhat referred to the amendment and the notifications and eventually passed the following order on 3.6.2003:-

11. Be it stated, there is no cavil over the fact that an appeal lies under Section 35 of the Central Excise Act, 1944 to the Commissioner (Appeals) who can address both the issues relating to facts and law keeping in view the applicability of the relevant notifications. It is borne out from the record that the assessee-appellant had furnished a bank guarantee amounting to Rs.2,20,18,124/- for obtaining an order of stay. In our considered opinion it would not be appropriate to give an opportunity to the appellant to prefer statutory appeals and allow it to enjoy the benefit of stay of recovery on the basis of a bank guarantee. Therefore, we would direct the assessee to deposit Rs.2.5 crores before the adjudicating authority within six weeks and after the said deposit is made and the receipt obtained, the appeal would be entertained within the said period. On an appeal being filed, the Commissioner (Appeals) shall deal with the matter on merits. Learned Attorney General very fairly stated that the Revenue would not raise the issue of limitation as the period spent before the High Court and this Court and the time granted for depositing of the amount would stand excluded for the purpose of preferring the appeal.

Considering the amount in question in various appeals it is directed that in case the bank guarantees furnished by the assessees have been encashed no deposit shall be made. If the bank guarantees have not yet been encashed the amount as mentioned hereinabove plus rupees five lakhs shall be deposited within the stipulated time frame of six weeks. As we have directed for deposition of the amount, it is directed that after deposit of the said amount, the bank guarantees furnished in favour of the jurisdictional Commissioner shall be returned to the assessee-appellants.

13. In the result, the appeals stand allowed in part. The judgment and orders of the High Court in writ petitions and writ appeals are set aside and the assessee/appellants are directed to prefer appeals with the conditions precedent as imposed hereinabove. The appeals shall be disposed of within a period of three months from the date of its presentation after giving opportunity of hearing to the parties. Needless to clarify, we have not expressed any opinion whatsoever on the merits of the case. There will be no order as to costs.

September 04, 2014