Prathamesh Dream Properties P. Ltd Vs Commissioner of CGST & Central Excise & others (Bombay High Court)
The issue under consideration is whether petitioner should have the benefit of relief as a declarant under the ‘pending litigation category’ and thus entitled to refund of the amount paid?
High Court states that a careful and conjoint reading of section 123(a) and section 124(1)(a) would indicate that the requirement of the statute is pendency of the appeal filed by the declarant as on 30.06.2019. Admittedly, petitioner’s appeal was pending before the CESTAT as on 30.06.2019, may be in defective form. The statute does not say that for being entitled to the relief under the ‘pending litigation category’, the appeal must be pending as on 30.06.2019 on being admitted by the appellate forum. This is not the requirement of the law. To hold so would be doing violence to the plain language of the statute. When something is not required or provided by the statute, it would be wholly untenable to add or read such a requirement into the statute to the disadvantage of the applicant (declarant). All that is provided for and is required, is that an appeal must be filed and that appeal should be pending as on 30.06.2019. It is immaterial whether the appeal has been provided a regular number or given a diary number. In such circumstances, HC have no hesitation to hold that the appeal filed by the petitioner before the CESTAT against the order-inoriginal dated 18.09.2018 was pending as on 30.06.2019 and therefore, the application (declaration) of the petitioner should be treated as one under the ‘pending litigation category’ and not one under the ‘arrears category’. This is because in addition to the above discussion, to be eligible under the ‘arrears category’ in terms of section 121(c), no appeal should be filed by the declarant against the order-in-original before expiry of the limitation period for filing appeal or the order-in-appeal has attained finality or the declarant has admitted the tax liability but has not paid the same which is not the position in the present case as petitioner had filed appeal against the order-in-original before expiry of the limitation period. Having regard to the discussions made above and what HC have held in Capgemini Technology Services India Limited (supra) and Thought Blurb (supra), declaration of the petitioner filed under the scheme on 23.12.2019 has to be construed to be one under the ‘pending litigation category’. Accordingly, the matter is remanded back to the Designated Committee to take a fresh decision as to the consequential relief to be granted to the petitioner, including refund of the amount paid by the petitioner, treating the declaration of the petitioner as one under the ‘pending litigation category’ after affording reasonable opportunity of hearing to the petitioner.
