Pankaj Bagri S/O Shivkumar Bagri & Anr. Vs Union of India & Anr. (Gujarat High Court)
The Hon’ble High Court of Gujarat allowed the writ petition and directed demand to sanction refund with interest under section 11B of the Act.
The petitioner is an individual. It purchased an under construction flat in Mumbai from Adani Developers. The builder charged service tax to the petitioner. The petitioner filed refund claim for the said amount. Show cause notice was issued proposing rejection. Claim was rejected as well as appeal came to be rejected. On appeal, Hon’ble CESTAT allowed the appeal. The claim was then sanctioned with interest. For second instalment of payment, again refund claim was filed. Similar show cause notice was issued and similar rejection order. The Ld. Commissioner (appeals) remanded the matter back to follow earlier orders. Yet, rejection order came to be passed. The Ld. Commissioner (appeals) again remanded the matter. Third show cause notice came to be issued, on same grounds. The petitioner replied. However, an ex-parte rejection order was passed. Such order was challenged in writ petition.
The Hon’ble High Court of Gujarat allowed the writ petition and directed demand to sanction refund with interest under section 11B of the Act. It held: (i) the third show cause notice and order are passed in gross violation of judicial discipline as the lower authorities have to unreservedly follow the orders of the higher appellate authorities; (ii) despite alternate remedy of appeal, the writ can be maintained if the orders are passed with jurisdiction; (iii) the service recipient cannot be made to comply with the provisions required to be complied by the service provider, if any; (iv) the adjudicating authority had not considered any of the documents produced by the petitioner and passed the same order again; from the approach of the authorities it appears they were bent on rejecting the refund claims.
