Page 124 - GSTL_7th May 2020_Vol 36_Part 1

82 GST LAW TIMES [ Vol. 36
ucts, viz. PSF/PFY and set aside the order of Commissioner of Customs
denying duty exemption. Commissioner of Customs, Mumbai recommend-
ed for filing Civil Appeal against the said order of the Tribunal. The matter
was referred to the Ministry of Law and the Ld. ASG advised filing of Civil
Appeal in respect to both items with particularly emphasis on TEG.
Accordingly a Civil Appeal was filed before the Hon’ble Supreme
Court. The Court was pleased to pass a one line order “The Civil Appeal is
dismissed”.
A reference was, therefore, made to the Ministry of Law, Advice B
Section for examining the feasibility of filing a review petition in this case.
The issue was examined by the Law Ministry and it was inter alia ob-
served :-
“The Hon’ble Apex Court has not indicated any reason for dis-
missal of the Civil Appeal and, therefore, apparently there are no
grounds for review of the order by the Apex Court. The impugned order
of the Apex Court does not imply that the order of the CEGAT stands
merged with the order of the Supreme Court. In the case of Indian Oil
Corpn. Ltd. v. State of Bihar - AIR 1986 SC 1780, the Apex Court has held
that when Special Leave Petition is summarily rejected, it occasions no
merger of the order of the Lower Court in the order of the Supreme
Court. These views have been reiterated by the Apex Court in the case
of Udai Pratap Singh v. State of Bihar - 1994 Suppl. (3) SCC 451 wherein it
has been held that dismissal of SLP by non-speaking order does not im-
ply approval of the impugned judgment.”
The file was also placed before the Learned Attorney General for India
and he observed as given below :
“In my opinion, there are no grounds for review. The issue in-
volved in CA No. 6645/99 which was dismissed by the Supreme Court
by its order dated 13-5-1999, may be agitated in other cases”.
The above noted learned opinion of Law Ministry and the Advice of
the Attorney General for India are brought to your notice so that similar
other cases, if any, could be contested in future. It may be noted that mere
dismissal of our CA/SLP does not mean that Supreme Court approved the im-
pugned judgement or order of CEGAT stand merged with the order of the Apex
Court and in similar other cases we can still agitate the same issue.”
(emphasis supplied)
8. The Principal Commissioner also referred the Circular dated 3 Sep-
tember, 2009 issued by the Central Board of Excise and Customs and it is as fol-
lows :
“Further, in Circular No. 897/17/2009-CX, dated 3-9-2009 issued by the
CBEC, New Delhi, again the same point is affirmed by the Board. The rele-
vant Para 2 of the quoted Circular is :
“2. The matter has been examined. It is seen that the Tribunal decision
and the High Court judgment referred to above, was delivered in the con-
text of erstwhile Rule 57-I of the Central Excise Rules, 1944 and that the Su-
preme Court order under reference is only a decision and not a judgment.
Since, the Rule 14 of the CENVAT Credit Rules, 2004, is clear and unam-
biguous in the position that interest would be recoverable when CENVAT
credit is taken or utilized wrongly, it is clarified that the interest shall be
recoverable when credit has been wrongly taken, even if it has not been uti-
lized, in terms of the wordings of the present Rule 14.”
GST LAW TIMES  7th May 2020  124