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2020 (9) TMI 930 - HC - GSTDemand of GST alongwith interest and penalty as well as encashment of 8 Bank Guarantee - detention of goods on the ground that e-way bills were faulty and undervalued and detention order passed - HELD THAT - Admittedly there is IGST demand of Rs. 2, 36, 63, 256.00 with equal amount of penalty imposed together the total dues comes to Rs. 4, 73, 26, 512.00 - As against this petitioner had paid IGST of Rs. 2, 36, 63, 256.00. At the stage of preferring the first appeals petitioner had deposited 10% of the IGST dues amounting to Rs. 23, 66, 326.00. Thereafter while filing the second appeals under section 112 of the CGST Act petitioner deposited Rs. 47, 32, 651.00 being 20% of the IGST dues. Thus petitioner had deposited an amount of Rs. 70, 98, 977.00 in addition to IGST dues already deposited. In all petitioner has deposited Rs. 3, 07, 62, 233.00. The amount covered by the eight bank guarantees is Rs. 4, 73, 26, 512.00. If both the figures are added i.e. the amount covered by the bank guarantees and the dues paid by the petitioner the amount would be Rs. 7, 80, 88, 745.00 (Rs. 4, 73, 26, 512.00 Rs. 3, 07, 62, 233.00) which amount is now with the respondents as against demand and penalty of Rs. 4, 73, 26, 512.00. From the above it is evident that an amount of Rs. 3, 07, 62, 233.00 (Rs. 7, 80, 88, 745.00 Rs. 4, 73, 26, 512.00) is lying in excess with the respondents. Even if the appeals filed by the petitioner under section 112 of the CGST Act are dismissed petitioner would be required to pay a further amount of Rs. 1, 65, 64, 279.00 only whereas respondents are holding onto an amount of Rs. 3, 07, 62, 233.00 of the petitioner much in excess of the dues. There is provision for filing further appeal to the appellate tribunal under Section 112. As per sub-section (1) any person who is aggrieved by an order passed against him under Section 107 or by the revisional authority under Section 108 may prefer appeal to the appellate tribunal against such order within three months from the date on which the order sought to be appealed against is communicated to the aggrieved person. As per sub-section 8(b) no appeal shall be filed under subsection (1) unless the appellant has paid a sum equal to 20% of the remaining amount of tax in dispute in addition to the amount paid under sub-section (6) of Section 107. Subsection (9) clarifies that when the appellant pays the pre-deposit as per sub-section (8) recovery proceedings for the balance amount shall be deemed to be stayed till disposal of the appeal - That being the position and without entering into the controversy as to whether respondent No.4 received request of the petitioner for extension of the bank guarantees before encashment we are of the view that having regard to the facts and circumstances of the case the following directions will meet the ends of justice - a. Respondent Nos.3 and 4 shall refund the amount of Rs. 4, 73, 26, 512.00 covered by the eight encashed bank guarantees with applicable statutory interest thereon to the petitioner within a period of four weeks from the date of receipt of a copy of this order; b. Petitioner to furnish fresh bank guarantee(s)from nationalized bank to respondent No.4 for an amount of Rs. 1, 65, 64, 279.00 covering the balance amount of penalty imposed on the petitioner within a period of four weeks from the date of receipt of a copy of this order. Petition disposed off.
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