Case Law Details
Century Copper Rod Pvt. Ltd. Vs Assistant Commisssioner (Gujarat High Court)
In this case Hon;ble HC was convinced that the amount has been withheld by the Assistant Commissioner for extra legal reasons. Once, the Tribunal had clearly held that the petitioner was entitled to refund of the amount, there was no reason for the assistant Commissioner to withhold the said amount by not making the payment of the petitioner and keeping it under “Consumer Welfare Fund” only on the pretext that the Department may in future file an appeal. No orders can be passed on the basis of apprehension or assumption that something may happen in future and deprive the petitioner which is a private limited company and will be requiring funds. Even after the remand by the Commissioner (Appeals) vide order dated 27.09.2019, the Assistant Commissioner has still not made the payment. In our considered opinion, there is no justification to withhold the payment.
High Court also held that the petitioner should be entitled for costs of the petition which could be fixed at Rs.1,00,000/-. This amount may also be recovered from the erring officers after due enquiry.
FULL TEXT OF THE HIGH COURT ORDER /JUDGEMENT
1. We have heard Mr. D.K.Trivedi, learned counsel for the petitioner and Shri Parth Bhatt, learned counsel appearing for the Department.
2. The CESTAT allowed the appeal of the petitioner vide order dated 09.05.2019 and held that the petitioner was liable to refund of Rs.3,62,90,547/- along with interest calculated from the date of application till the date of payment. According to Mr. Trivedi, the rate of interest for the above period would be 6%. After the order of the Tribunal, the petitioner approached the Assistant Commissioner for making refund. The Assistant Commissioner passed order on 20.08.2019 holding that the petitioner was although entitled for refund, but directed that the said amount may be credited in the account of the “Consumer Welfare Fund” instead of crediting it in the account of the petitioner. Aggrieved by the said order dated 20.08.2019 of the Assistant Commissioner, the petitioner preferred appeal, which was allowed by order dated 27.09.2019 by the Commissioner (Appeals) and the matter was remitted to the Assistant Commissioner to pay the refund amount along with interest. Thereafter, the Assistant Commissioner has not made payment so far. Aggrieved by the inaction and not receiving the refund, the petitioner has approached this Court by way of the present petition.
3. On the previous date i.e. 20.07.2020 we had granted time to Mr. Parth Bhatt, learned Standing Counsel for the Department to obtain instructions in the matter. Today, Mr. Bhatt upon instructions has stated that the facts as narrated above are correct, however, the only reason for withholding the refund is that the Department has preferred an appeal before the High Court against the order of the Tribunal dated 09.05.2019 in the month of February, 2020 and that too accompanied by delay condonation application. According to Mr. Bhatt, it is because of this reason the
refund is not being paid.
4. We are afraid that the defence taken by Mr. Bhatt can be sustained under any circumstances. In fact, we are convinced that the amount has been withheld by the Assistant Commissioner for extra legal reasons. Once, the Tribunal had clearly held that the petitioner was entitled to refund of the amount, there was no reason for the assistant Commissioner to withhold the said amount by not making the payment of the petitioner and keeping it under “Consumer Welfare Fund” only on the pretext that the Department may in future file an appeal. No orders can be passed on the basis of apprehension or assumption that something may happen in future and deprive the petitioner which is a private limited company and will be requiring funds. Even after the remand by the Commissioner (Appeals) vide order dated 27.09.2019, the Assistant Commissioner has still not made the payment. In our considered opinion, there is no justification to withhold the payment.
5. We, accordingly, were inclined to direct the presence of the Assistant Commissioner, who had passed the order not refunding the amount to the petitioner, but on the insistence of Mr. Bhatt that better sense may prevail on the officers and amount would be fully paid to the petitioner within 24 hours, we adjourn this matter for day after tomorrow i.e. 29.07.2020. We further provide that the interest of 6% would be payable up to the date when the amount was credited in the account of the Consumer Welfare Fund. However, after that date the petitioner should be entitled to higher rate of interest say 18% till the date of actual payment and the excess amount of interest so0 paid to be recovered from the officers found responsible for not making payment in time after due inquiry by the Department. Further, we are also of the view that the petitioner should be entitled for costs of the petition which could be fixed at Rs.1,00,000/-. This amount may also be recovered from the erring officers after due enquiry.
6. On the next date i.e. 29.07.2020 in addition to the amount of refund with admissible interest the respondents would come prepared with drafts / cheques for the proposed additional interest and costs. Subject to hearing the counsel for the parties we will pass appropriate orders regarding additional interest and costs.
7. Let this matter be listed on 29.07.2020. If on the said date, full compliance as noted above is not made, the Assistant Commissioner would remain present along with his explanation.
Date : 29/07/2020
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH)
1. Mr. Parth Bhatt, learned counsel for the Department states that pursuant to order dated 27-7-2020, along with the principal amount of refund of Rs.3,62,90,547/-, interest @ 6% calculated from the date of judgment of the CESTAT till yesterday amounting to Rs.26,48,706/- has been credited in the account of the petitioners yesterday. He has further requested that the Court may consider waiving higher rate of interest and the cost of Rs.1,00,000/- as proposed in the order dated 27.07.2020.
2. Mr. D.K.Trivedi, learned counsel for the petitioners submits that the respondents have not paid the entire amount due under law as interest was to be counted after expiry of three months from the date of submission of the application for refund, which was done in January/February, 2016. Thus, the respondents having deliberately flouted the statutory provisions and having still not paid the full amount of interest which, according to him, would be an additional amount of Rs.71,52,700/- for the period from 8-5-2016 till 8-5-2019. Thus, he submits that he is not only entitled to this additional amount of interest for the above period but would also be justified in getting the higher rate of interest and the costs as proposed in the order dated 27.07.2020.
3. Having considered the submissions, we require Mr.Trivedi, learned counsel for the Department to file his objections within three days and Mr. Parth Bhatt, learned counsel for the petitioner to file his objections within three days thereafter, after exchanging the copies. Let this matter be listed again on 10-8-2020 for further consideration.
