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TMI Blog2013 (3) TMI 581X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal proceedings are pending, we would not deal with all these prayers, instead, we would address as to what should be done in the interregnum till the Appellate Authority decides the appeal already instituted by the petitioners. Central controversy is the demand raised by the respondents against the petitioners of value added tax under a provisional assessment. The demand with interest and penalty touches Rs. 3 Crores (rounded off). 3. The petitioners are in the business of manufacturing vitrified and ceramic tiles. They have been paying value added tax under the Gujarat Value Added Tax Act ('VAT Act' for short) since several years. On certain contentious issues, the Adjudicating Authority passed its provisional assessment order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 37 Crores was withdrawn from the said Bank account by coercive action. However, due to the intervention of the Court, such demand draft was not encashed and such amount, ultimately, was not recovered; e) On or around 14.02.2013, the departmental authorities also issued communication to the customers of the petitioners seeking direct recovery of their dues; 5. On the basis of above facts, counsel for the petitioners contended that the respondents acted in a high handed manner and recoveries were initiated in an unauthorized way. In fact, part of the recovery was made even when the petitioners' appeal with pre-deposit waiver was pending and under active consideration of the Appellate Authority. Counsel further submitted that substantial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hand, learned AGP opposed the petition, raising following contentions: i) Order of provisional assessment is appealable; ii) Petitioners have already preferred an appeal and this petition, therefore, should not be entertained; iii) He contended that the demand relatable to the issue involved in the decision in case of Reliance Industries (Supra), is Rs. 60 Lacs approximately with interest and penalty out of the total demand of Rs. 3 Crores. He further contended that the petitioners' claim to give credit of excess reversal was never at issue before the Adjudicating Authority who passed the order of provisional assessment. Such issue, at best, can be gone into in the appeal proceedings if raised by the petitioners and otherwise permiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eciding this issue. Nothing stated in this order shall prejudice either side in the pending proceedings. The fact that emerged from the record are as follows. 8.1 Respondents have raised a demand of Rs. 3 Crores out of which, even, as per the respondents, a sum of Rs. 60 Lacs represents the issue pertaining to reversal of credit on the fuel used in manufacturing activity. If the judgment of this Court is applied, the demand, therefore, gets reduced to Rs. 2.40 Crores. Even, therefore, without taking into account the dispute of the petitioners with respect to the quantification of this amount, even as per the department, total amount would come to Rs. 2.40 Crores. 8.2 As against such demand, the petitioners have already deposited a sum of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itionally or unconditionally. Such discretion has to be exercised judiciously depending on the facts of the case. In the present facts and circumstances of the case, in our opinion, a sum of Rs. 1.28 Crores as already recovered from the petitioners qua the demand arising out provisional assessment of Rs. 3 Crores, should be sufficient to meet with the pre-deposit requirement. No further pre-deposit should be insisted upon, particularly, as already noted, demand itself upon application of judgment of this Court and even as per the department's calculation, comes down to Rs. 2.40 Crores. Pre-deposit would thus be in excess of 50% of the total demand inclusive of interest and penalty. 11. Rest of the steps for recovery taken in furtheranc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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