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STATE OF GUJARAT Versus SHYAM INDUSTRIES

2016 (6) TMI 907 - GUJARAT HIGH COURT

Withholding of Refund - refunds payable to the respondent out of the orders passed by the Tribunal - department appeal is pending before the Supreme Court - Held that:- For multiple reasons, we simply cannot approve the approach of the Tribunal. When the Supreme Court has issued notice not only on the application for condonation of delay but also on special leave petition and on the prayer for interim relief, it was, in our opinion, more than a command to the Tribunal not to bring any further pr .....

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nterim relief, the Tribunal should have issued such strong directions for release of the refund. The approach and the order of the Tribunal to put it mildly simply baffles us. - Decided in favor of the revenue. - SPECIAL CIVIL APPLICATION NO. 5204 of 2016 - Dated:- 17-6-2016 - MR. AKIL KURESHI AND MR. A.J. SHASTRI, JJ. FOR THE PETITIONER : MS JIRGA JHAVERI, AGP FOR THE RESPONDENT : UCHIT N SHETH, ADVOCATE ORAL ORDER (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. The Government has challenged an o .....

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passed following order: (4) Considering the rival submissions and the facts of the case we are of the view that the Department cannot take lightly the orders passed by this Tribunal from time to time. It appears that the Department could not make the payment of refund because of the filing and/or pending the matters before the Hon'ble Supreme Court, however, the Department could have certainly made the payment of cost awarded. Considering the fact that whenever the matter is fixed before th .....

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f order of pre deposit passed by this Tribunal even after succeeding in appeal before this Tribunal as well as before the Hon'ble Gujarat High Court. 15. In the above view of the matter, we direct the opponent to pay back the amount of refund alongwith cost as awarded by this Tribunal within 30 days from today or in the alternative to obtain any order from Hon'ble Supreme Court, failing which, the learned Commissioner of Commercial Tax is requested to remain present before this Tribunal .....

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ds as under: Upon hearing the counsel the Court made the following order: Issue notice on application for condonation of delay and on special leave petitions as also on prayer for interim relief. 3. We notice that the present respondent has filed Special Civil Application No. 6943 of 2016 concerning this very issue of refund, in which, the petitioner has challenged an order dated 26.10.2015 passed by the Commercial Tax Officer, in which, he has provided that since the department is in the proces .....

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on'ble Supreme Court and the Honourable Supreme Court vide its order dated 18/1/2016 has issued notice on application for condonation of delay and also on Special Leave Petitions and on prayer for interim relief. He has therefore requested this Tribunal to adjourn the hearing of these Miscellaneous Applications for one month. Mr. Nishan C.Shukla, the Learned Advocate appearing for the applicant has submitted that as per the earlier order passed by this Tribunal, the State of Gujarat is direc .....

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ected earlier. (2)For compliance of this order the hearing of these Miscellaneous Applications is adjourned to 1/3/2016. Pronounced in open court on this 1st day of February,2016. 4. From this order, it can be seen that order dated 18.01.2016 passed by the Supreme Court was brought to the notice of the Tribunal as far back as on 01.02.2016. Despite which, the Tribunal proceeded to take further coercive action against the department for release of the refund. In the operative portion of the impug .....

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epartment but also indicated its desire to hear the respondent on the question of interim relief. This should have been sufficient signal to the Tribunal to stay its hands off from any further coercion to the department for releasing the refund. In the order dated 01.02.2016, even after this order was pointedly brought to the notice of the Tribunal, it insisted that the department must obtain an interim relief from the Supreme Court or, in the alternative, the petitioner should pay cost of ͅ .....

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