1. 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 out of actions, which had been taken by the respondents/authorities concerned on their interpretation of certain notifications, which were issued, from time to time, by the Government of India, Ministry of Finance, Department of Revenue, granting exemption from payment of excise duty and additional duty of excise to certain specific classes of manufacturers, who set up industries in any of the seven North-Eastern States. The writ petitioners had set up their industries under two notifications bearing No. 32/99-CE and 33/99-CE, both, dated 08. 07. 99, whereunder the Central Government had exempted certain goods, manufactured in the specified areas, in the North-Eastern Region of India, from payment, inter alia, of excise duty or additional duty of excise, which were, otherwise, leviable on these goods.
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 exemption from payment of excise duty, or additional duty of excise. By Notification, dated 17. 01. 2000, the Central Government restored the exemptions, but, later on, the exemptions, so granted, were, once again, withdrawn by the Central Government by Notifications, dated 22. 01. 2000 and 01. 03. 2001.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 Central Government has the power to amend the two Notifications, dated 08. 07. 1999, aforementioned with retrospective effect. What it signified was that the Central Government became empowered to recover the money, already refunded to the manufacturers, in terms of its schemes of exemption as had been embodied in its earlier 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the exemptions, granted under the said two notifications, dated 08. 07. 2009, were, at some stages, as indicated above, withdrawn, the exemptions, which had been earlier withdrawn, were, once again, restored, in respect of certain excisable goods including pan masala, by Notification No. 69/2003 CE, dated 25. 08. 2003, to the extent of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 25. 08. 2003, stipulated thus:
(a) The scheme would be available only in respect of those units, which would 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, Mizoram, 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 utilized by the manufacturer only for 'investment' in plant and machinery in a manufacturing 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 month of the expiry of the period of six months as described hereinbefore, details of the investments made by the manufacturer;
(h) The said Committee was to consist of the Chief Commissioner of Central Excise, Shillong, the Principal Secretary of the Department of Industry of the State 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 Committee that the investment was made, in plant and machinery, in a manufacturing unit located in any of the seven States aforementioned; and,
(j) Finally, once the Committee (which came to be known as the Investment Appraisal Committee, in short, the IAC ) was satisfied that the 'investment' was made in plant and machinery , in a manufacturing unit in terms of the Notification, dated 25. 08. 2003, aforementioned, it was to issue a certificate to this effect to the manufacturer within a period of three weeks after the period of one month described above;
(k)The certificate, granted by the IAC, was to be produced by the manufacturer, 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 required to be for a period of ten years from the date on which the 'investment' was 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 Notifications, 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 of excise, was made available subject to compliance of certain new conditions by the manufacturers. The Notification, dated 21-01-2004, expanded the scope of exemption by making it clear that this exemption, to the extent of 100%, would be available not only to those manufacturers, who make their investment in 'plant and 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, located 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 receiving exemption, however, remained same as embodied under the earlier Notification, 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' stood expanded inasmuch as a manufacturer became eligible to receive exemption from payment of excise duty, or additional duty of excise, if he could prove, to the satisfaction of the IAC, that the 'investment' was made either in plant and machinery 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 procedural amendments were introduced to the Notification, dated 21- 01-2004, aforementioned.
(vii) The subsequent Notification, dated 09-07-2004, stipulates: (a) That the sum, equal to the excise duty that was payable, but for the exemption, would be deposited by the manufacturer, within 60 days from the end of the quarter, in an Escrow Account to be opened by the manufacturer in a bank authorized for excise duty collection;
(b) The Notification provides that operations, including withdrawals from, and closure 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 , specified in the said Notification, dated 09. 07. 2004;
(c) The jurisdictional Commissioner is also enjoined to safeguard, while granting 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 utilized for the purposes specified within 60 days of its withdrawal;
(e) The manufacturer is also required to submit a quarterly statement, within sixty days of the end of the quarter, to the IAC, namely, Investment Appraisal Committee, consisting of the Chief Commissioner of Central Excise, Shillong, the Principal 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 IAC;
(g) If the IAC is satisfied that the 'investment' has been made in accordance with 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 date 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 Notification, then, the duty, which is equivalent to the amount not deposited or invested, shall be 'recoverable' from the manufacturer along with interest thereon 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 'forfeiture' of amount in the said Escrow Account.
(ix)Pursuant to the Notification, dated 21. 01. 2004, as amended by Notification, dated 09. 07. 2004, the Petitioner No. 1 herein has entered, on 21. 06. 2005, into a tripartite escrow agreement, dated 21. 06. 2005, with Respondent No. 2, namely, State Bank of India, New Guwahati Branch, Guwahati, and respondent No. 3, namely, Commissioner, Central Excise, Shillong (who is the jurisdictional Commissioner). Under this agreement, respondent No. 3 has been appointed as Escrow Agent. It is stipulated in the agreement that operations, including withdrawals from, and closure of, the said Escrow Account, are to be made with the prior approval of the jurisdictional Commissioner of Central Excise, Shillong. It has also been provided therein that if the balance amount, lying in the Escrow Account, is not re-invested in terms of the Notification 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 of 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 Escrow Account. The said Escrow Agreement, dated 21. 06. 2005, further provides that where the Petitioner No. 1 fails to make the deposit or does not invest the amount specified in condition (B) of the Notification No. 8/2004-CE, dated 21. 01. 2004, 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 to the extent of 'forfeiture' made.
3. On the ground that requisite investment certificates had not been produced by the petitioners, a notice to show-cause was issued to the petitioners various units asking them to show-cause as to why on their failure to comply with the requirement of production of investment certificate within the specified period, diverse sums of money, mentioned in the said show-cause notices, which were equivalent to the exemption of the duty availed of by the petitioners with such interest as had accrued thereon, be not compelled to be paid back by the writ petitioners. The writ petitioners replied to the said show-cause notices. Following the writ petitioners replies to the said notices and without making any further communication to the writ petitioners, diverse sums of money were transferred from the Escrow Account of the petitioners, maintained with their bankers, by way of recovery of amounts, which were claimed under the said show-cause notice. This apart, directions were also issued by the authorities of the Central Excise freezing operation of the writ petitioners Escrow Accounts. These actions of the respondents came to be challenged by way of a writ petition, which gave rise to WP(C) No. 591/2008.
4. By filing the writ petition, which gave rise to WP(C) No. 591/2008, the applicants herein impugned, as writ petitioners, the actions of the respondent No. 2, namely, Commissioner of Central Excise, Shillong, (i) in appropriating a sum of Rs. 57,61,37,536/- and further an amount of Rs. 28,55,14,172/- and Rs. 30,35,24,690/- respectively from various Escrow Accounts of the petitioners, and (ii) in freezing the various Escrow Accounts of the petitioner. 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 Central Excise, Shillong, in forfeiting the sums of Rs. 57,61,37,536/- (Rupees Fifty Seven Crore Sixty One Lac Thirty Seven Thousand Five Hundred Thirty Six only), Rs. 28,55,14,172/- (Rupees Twenty Eight Crores Fifty Five Lakhs Fourteen Thousand One hundred and Seventy Two) and Rs. 30. 35. 24,690/- (Rupees Thirty Crores Thirty Five Lakhs Twenty Four Thousand Six Hundred and Ninety only) from the Escrow 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 Bank of India, Main Bazaar Branch, Agartala, respectively, and the directions given, or requests made, by the respondent No. 2 to transfer the said amounts of money 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 respondent 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 Central Excise, Shillong, in freezing the Escrow Account Nos. 10566984064 and 10566984086 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 the 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 directed that while computing the period of investment of two years from the date of deposit under the Notification, dated 21. 01. 2004, read with the Notification, dated 09. 07. 2004, the period, during which the said accounts remained frozen and inoperative, shall be excluded.
(iii)The respondent No. 2 is hereby directed to consider, and decide, in the light of the discussions held above within a period of one month from today all the applications made by the petitioners, seeking withdrawal of money from their respective Escrow Accounts for the purpose of making investments on their various projects, including the project of five star hotel.
5. 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 writ petition was disposed of, there has been no development as far as the implementation 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 (while the writ petition was still under consideration by this Court), the applicants have approached the Chief Commissioner of Central Excise and respective jurisdictional Commissioners of Central Excise, at Shillong and Guwahati, requesting them to implement the directions given by this Court.
6. According to applicants, the implementation of the directions given by this Court, in the said writ petition, need some clarification so that the order may be implemented in letter as well as spirit.
7. The applicants have sought for clarification as under:
i. That while computing the period of investment under the notification, the time 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 pursuant 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.
8. Resisting the above application, respondents have filed their objection, wherein they have contended, inter alia, that when a writ proceeding is terminated 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 respondents to the case of State of U. P. v. Brahma Datta Sharma, reported in (1987) 2 SCC 179. In their objection, the respondents concede that in its subsequent decision, 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 Datta 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 application, have the potential to obtain further order/directions of this Court on issues, which stood concluded by judgment and order, dated 06. 01. 2010, aforementioned inasmuch as this Court might possibly have not consciously granted the reliefs, which the applicants are, now, seeking to obtain with the help of the present misc. application. In such circumstances, according to the respondents, the misc. 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).
9. 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 clarifications, if required, could have been sought for by the respondents themselves. 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 been listed.
10. 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.
11. Though the respondents resisted the writ petition, this Court, by its judgment and order, dated 06. 01. 2010, allowed the writ petition by setting aside the respondents impugned actions of getting transferred various amounts from the Escrow Accounts of the writ petitioners towards alleged dues of excise duty and additional duty of excise. The Court also set aside the respondents acts of freezing the writ petitioners Escrow Accounts. However, as the scheme of exemption envisaged that in order to make a manufacturer entitle to claim exemption from payment of excise duty, he was required to make investment by withdrawing money lying in his Escrow Accounts, but for the purpose of withdrawing his money from the Escrow Accounts, he was to make an application for withdrawal of money from his Escrow Account to the jurisdictional Commissioner and it was only on being so permitted by the jurisdictional Commissioner, the manufacturer could have made investment and such investments were to be examined by an Investment Appraisal Committee (in short, the IAC ) and if allowed by the IAC, the manufacturer was to receive exemption of such amounts as may have been specified by the IAC as investment made by the manufacturer. With regard to various time-frames for taking all these actions, which the scheme envisaged, such as, making of application for withdrawal, making of investment, certification by the IAC, this Court took the view, for reasons assigned, that these time-frames were directory in nature and, accordingly, ordered the respondents to consider, within a period of one month from the date of delivery of the judgment, all the applications seeking withdrawal of money from their respective Escrow Accounts for the purpose of making investments on their various projects including the project of a five-star hotel. As the petitioners had not been able to make investment 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, during which the Escrow Accounts, in question, remained frozen, shall be excluded so that the withdrawal applications do not lapse and the investments, sought to be made, were not denied due to the illegal and arbitrary actions of the respondents. By getting the money lying in the Escrow Accounts transferred towards payment of alleged duties of excise duty and/or additional duty of excise.
12. However, it appears, now, that while this Court did direct that the periods, during which the Escrow Accounts remained frozen, be excluded for the purpose of consideration of withdrawal applications, for the purpose of making investment and for the purpose of certification of the investment by the IAC, the Court did not pass any specific direction that the periods, during which the money having been transferred on the direction of the respondents from the petitioners Escrow Accounts towards alleged recoverable dues of excise duty or additional duty of excise be also kept excluded, the writ petitioners, with the help of the present miscellaneous application, have, now, sought for a clarification to be issued that not only the periods, during which the Escrow Accounts remained frozen, but also during the periods, when diverse sums of money were lying transferred by the orders of the respondents/authorities concerned from the writ petitioners Escrow Accounts towards recovery of the petitioners alleged duties of excise duty or additional duty of excise and remained, thus, unutilized shall be excluded for the purpose of considering the withdrawal applications and also for the purpose of making investments. By this miscellaneous application, the writ petitioners, as appellants, have also sought for, besides the reliefs as indicated above, certain directions to be issued by way of clarification, such as, the direction that the applicants be allowed to file fresh withdrawal application for making investment under the notification of the amounts to be made available to them pursuant to the judgment and order, dated 06. 01. 2010, and to make absolute the interim order, which was passed on 03. 09. 2008, allowing the applicants to proceed with the construction of the five-star hotel.
13. The respondents, as already indicated above, have resisted the application by contending that this application is not sustainable, because this application seeks further order or direction from this Court on issues, which already stand concluded inasmuch as this Court might possibly have not consciously granted the reliefs, which the applicants are, now, seeking and if the application is allowed, it would amount to issuing further directions, which would be impermissible in law. I find considerable force in the submissions of Mr. Choudhury that no such clarification can be issued by this Court, which would have the effect of giving such reliefs, which the petitioners were, otherwise, not entitled to, and/or have not been granted by the judgment and order, dated 06. 01. 2010. I, therefore, do not find that this Court can or should order, on the strength of this application, (which is an application seeking mere clarification and not an application for review) that the applicants be permitted to file fresh withdrawal applications for making investments or that the interim directions, earlier passed in the writ petition, allowing the applicants to proceed with the construction of their five-star hotel subject to the conditions mentioned in the order itself, be made absolute, for, such an order would amount review of its earlier order though the applicants have sought for review of the various direction, given in the judgment and order, dated 06. 01. 2010. Had the present one been a review application, the situation could have, perhaps, been a little different.
14. Considering, however, the fact that the withdrawal applications, which the respondents are directed to examine and dispose of within the specified time-frame, cannot be effectively considered if the periods, during which the money having been transferred from the petitioners Escrow Accounts remained illegally unutilized with the respondents, it is necessary to clarify, and it is hereby clarified, that not only the periods during which the Escrow Accounts, in question, remained frozen, but also during the periods, when diverse sums of money, having been transferred from the petitioners Escrow Accounts towards recovery of the alleged dues of the petitioners, remained unutilized by the petitioners, be kept excluded, while considering their applications for withdrawal so that the withdrawal applications do not lapse by the ex facie illegal actions of the respondents and not for any default on the part of the writ petitioners-applicants.
15. Because of what have been discussed and pointed out above, this miscellaneous application is partly allowed. While the applicants prayer, made under Clauses (ii) and (iii), are hereby declined, it is hereby clarified that while computing the period of investment under the relevant notifications, the periods, during which diverse sums of money, having been withdrawn from the Escrow Accounts of the applicants, as indicated above, remained unutilized, be kept excluded.
16. As regards the hotel project, it is hereby clarified that the respondents shall deal with the writ petitioners application, with regard to the withdrawal of money from their Escrow Accounts for the purpose of making investment for the purpose of construction of the hotel, in question, in the manner as already indicated in the judgment and order, dated 06. 01. 2010. The direction to exclude the periods, during which the money, on having been withdrawn from the petitioners Escrow Accounts by the respondents remained unutilized, is really in the nature of clarification inasmuch as in the light of the directions, (which have already been issued in the writ petition, while disposing of the writ petition by judgment and order, dated 06. 01. 2010), the respondents could have themselves kept the said periods excluded as the applications, seeking withdrawal of various sums of money from the Escrow Accounts for the purpose of making investments, cannot be considered at all, as has been directed by this Court, unless the periods, during which the money remained unutilized because of the fact that the Escrow Accounts remained frozen or due to the fact that the money lying in the Escrow Accounts had been illegally withdrawn by the respondents, is kept excluded.
17. With the above observations and directions, this Miscellaneous application shall stand disposed of.
18. No order as to costs.