CESTAT recommends Contempt proceeding for issue of SCN after passing of final order

Portech India Infoservices Pvt. Limited Vs Commissioner of Central Goods & Service Tax & Central Excise (CESTAT Delhi)

This Tribunal on a careful examination of the facts and circumstances, finds that the refund claim was originally adjudicated by the Assistant Commissioner vide order-in-original and was rejected only on the ground of non-compliance of Condition No. 2(h) of Notification No. 27/2012 (Condition of debit of the refund amount at the time of filing of refund claim). In the appeals filed by the assessee before the Commissioner (Appeals) the orders were upheld rejecting the appeals. Thus, there was no issue regarding any part of the refund claim under Rule 5B of Cenvat Credit Rules read with Notification No. 12/2014-CE. Thus, in the facts and circumstances, this Tribunal finds that the action of the said Assistant Commissioner, Sh. Ravi Babu in issuing the show cause notices after passing of the final order of this Tribunal, with respect to the subject matter of refund adjudicated by this Tribunal, was wholly against the provisions of law, in clear contravention of the ‘doctrine of merger’ and amounts to interference in the justice delivery system. Accordingly, this Tribunal is hereby referring this matter to the Hon’ble Delhi High Court for initiating suitable action/ proceedings under Section 10 of the Contempt of Courts Act, 1971, for contempt of this Tribunal, which is a sub-ordinate Court to Hon’ble Delhi High Court.

FULL TEXT OF THE CESTAT DELHI ORDER

That this Tribunal, single Member Bench (presided by me), passed common Final Order No. 51875 – 51876/2021 dated 14.10.2021 in Service Tax Appeal Nos. 50753 & 50754/2020 filed by M/s Porteck India Infoservices Pvt. Limited, where the only issue involved was whether the refund claim under Rule 5 of Cenvat Credit Rules read with Notification No. 27/2012-CE (NT) can be rejected on the ground that the appellant did not debit the amount of refund claim at the time of filing the refund claim, but have debited such amount subsequent to the filing of the refund claim but before the adjudication. This Tribunal held that the debit of the amount of refund claim in the cenvat credit register, suo motu before the adjudication, is sufficient compliance of Condition No. 2(h) of the said notification. Accordingly, the appeals were allowed with consequential benefit, directing the Adjudicating Authority to grant the refund within a period of 45 days from the date of receipt of the order with interest as per rules.

2. The appellant – assessee M/s Portech India Infoservices Pvt. Limited have filed this miscellaneous application (registered as ST/Misc/50009/2022-SMC) before this Tribunal under Rule 41 of CESTAT Procedure Rules, 1982 pointing out that when the assessee approached the Department with a copy of the final order for grant of refund, as allowed by this Tribunal, vide representation(s) dated 18.10.2021 and 25.11.2021, instead of granting the refund, the Assistant Commissioner have again issued show cause notices with regard to both the amounts of refund, requiring the appellant to show cause proposing to disallow part of the amount on the ground(s) mentioned in the show cause notices.

3. This Tribunal vide Interim Order No. 5/2022 dated 23.03.2022 observed that the action of the Assistant Commissioner by issuing fresh show cause notices amounts to interference in the justice delivery system. Accordingly, Sh. Ravi Babu, the Assistant Commissioner, CGST Division, Daryaganj, Central GST Commissionerate, Delhi North, 17-B, IAEA House, I.P. Estate, New Delhi-110002, was directed to show cause as to why proceeding(s) for ‘Contempt of Court’ be not drawn against him and referred to the Hon’ble Jurisdictional High Court for further action and in the alternative, liberty was granted to Sh. Ravi Babu to comply with the Final Order of this Tribunal and file compliance report before 25.04.2022.

4.  On the next date fixed for the compliance on 25.04.2022, the learned Authorised Representative for the Revenue Sh. Ishwar Charan informs that compliance has been made by the concerned Assistant Commissioner of the Final Order dated 14.10.2021. As the appellant was absent on 25.04.2022, the learned Authorised Representative was directed to serve a copy of the compliance report upon the ld. Counsel for the appellant for their perusal and reply, if any.

5. On the next date fixed on 12.05.2022, the ld. Counsel for the appellant/ petitioner was present and brought to notice of this Tribunal that the learned Assistant Commissioner instead of complying with the Final Order of this Tribunal in letter and spirit have re-adjudicated the refund claim without authority of law, and have issued the refund for truncated amount with respect to both the periods as follows:-

Accordingly, this Tribunal issued show cause notice to Sh. Ravi Babu, Assistant Commissioner, CGST Division, Daryaganj, Central GST Commissionerate, Delhi North, 17-B, IAEA House, I.P. Estate, New Delhi-110002 to show cause as to why not proceeding for contempt be not drawn and referred to the Hon’ble Jurisdictional High Court for taking cognizance and necessary action.

6. In reply to the show cause notice dated 13.05.2022, issued by this Tribunal, Sh. Ravi Babu, Assistant Commissioner have filed written submission received in the Tribunal on 09.06.2022 stating therein that part of the refund claim with respect to the period January, 2016 to March, 2016 was under Rule 5B read with Notification No. 12/2014-CE, and thus following the principal of natural justice, it was deemed fit to issue show cause notice and readjudicate the refund claim and also for the other period April, 2017 to June, 2017. Further, stating that so far the claim under Rule 5 read with Notification No. 27/2012 is concerned, the same has been granted. Sh. Ravi Babu, Assistant Commissioner who was present in person was also heard.

7. This Tribunal on a careful examination of the facts and circumstances, finds that the refund claim was originally adjudicated by the Assistant Commissioner vide order-in-original and was rejected only on the ground of non-compliance of Condition No. 2(h) of Notification No. 27/2012 (Condition of debit of the refund amount at the time of filing of refund claim). In the appeals filed by the assessee before the Commissioner (Appeals) the orders were upheld rejecting the appeals. Thus, there was no issue regarding any part of the refund claim under Rule 5B of Cenvat Credit Rules read with Notification No. 12/2014-CE. Thus, in the facts and circumstances, this Tribunal finds that the action of the said Assistant Commissioner, Sh. Ravi Babu in issuing the show cause notices after passing of the final order of this Tribunal, with respect to the subject matter of refund adjudicated by this Tribunal, was wholly against the provisions of law, in clear contravention of the ‘doctrine of merger’ and amounts to interference in the justice delivery system. Accordingly, this Tribunal is hereby referring this matter to the Hon’ble Delhi High Court for initiating suitable action/ proceedings under Section 10 of the Contempt of Courts Act, 1971, for contempt of this Tribunal, which is a sub-ordinate Court to Hon’ble Delhi High Court.

8. The registry is directed to send two sets of this order alongwith Annexures as mentioned herein below to the Registrar, Hon’ble High Court, New Delhi, for placing the matter before the Hon’ble Chief Justice of Delhi High court or his companion Justices of the said Court for initiation of appropriate proceedings under Section 10 of the Contempt of Courts Act, 1971, against:

RAVI BABU,
ASSISTANT COMMISSIONER, CGST, DIVISION DARYAGANJ,
CENTRAL GST COMMISSIONERATE,
DELHI NORTH, 17-B, IAEA HOUSE, I. P. ESTATE
NEW DELHI-110002.

LIST OF ENCLOSURES:

9. Miscellaneous application is accordingly disposed off.

(Pronounced on 19.07.2022).