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2016 (9) TMI 667 - GUJARAT HIGH COURT

2016 (9) TMI 667 - GUJARAT HIGH COURT - 2016 (341) E.L.T. 211 (Guj.) - Entitlement to interest on refund of purchase tax - Section 54(1) of the erstwhile Gujarat Sales Act,1969 - manufacture of Ayurvedic medicines - URD purchase - purchase tax - Section 15B under the erstwhile Gujarat Sales Act,1969 r/w Rule 42E of the Sales Tax Rules - gas used as fuel for manufacturing process - is the assessee entitled to interest on delayed refund of purchase tax and also interest on interest on delayed refu .....

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micals [2013 (10) TMI 117 - SUPREME COURT] also relied upon. - Appeal dismissed - decided against Revenue. - TAX APPEAL NO. 668 of 2016 With TAX APPEAL NO. 678 of 2016 - Dated:- 29-8-2016 - MR. AKIL KURESHI AND MR. A.J. SHASTRI, JJ. FOR THE APPELLANT : MR PRANAV TRIVEDI, AGP ORAL ORDER (PER : HONOURABLE MR.JUSTICE A.J. SHASTRI) 1. Both the Tax Appeals are filed for the purpose of challenging the decision delivered by the Gujarat Value Added Tax Tribunal, Ahmedabad on 8.1.2015 with respect to .....

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oceedings are an extension of assessment proceedings ? (iii) Whether the Hon ble Tribunal was justified in directing the first appellate authority to pass consequential orders in a specified time limit ? 3. The brief facts leading to filing of present appeals are that the respondent is engaged in the business of manufacturing of Ayurvedic medicines and during the course of assessment proceedings, it was discovered by the department that respondent had done URD purchase and hence, the purchase ta .....

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e said order passed by the first appellate authority on 26.2.2004, the respondent herein had preferred Second Appeal No.548 of 2004 and another cognate Second Appeal No.547 of 2004. The Tribunal, after considering the decision delivered in case of Ami Pigment, confirmed the refund on purchase tax. However, the Tribunal was of the view that respondent was entitled to interest under Section 54(1) of the erstwhile Gujarat Sales Act,1969. The Tribunal came to this conclusion on the premise that the .....

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alled upon to pay the purchase tax as the gas was used as fuel for manufacturing process and the department has not withheld the amount of tax. It was also contended by the learned counsel for the revenue that the Tribunal has wrongly held that appeal proceedings are nothing but the extension of original assessment proceedings and by raising such contentions, ultimately the substantial questions of law are raised and conveyed that the respondent is not entitled to interest on the refund under Se .....

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t the taxing statute is silent about the same. In that case, the Division Bench of this Court, after considering the decision of the Apex Court in case of Commissioner of Income Tax V/s. Gujarat Fluoro Chemicals , reported in (2014) 1 SCC 126, held in Para.14 that interest can be awarded. Relevant Para.13 and 14 of the said decision is reproduced, thus; 13. In addition to the above, the principles of compensatory measure may apply if the taxing statute is silent about the said aspect. The Legisl .....

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SC) read with the subsequent decision of the Apex Court in case of Commissioner of Income Tax V/s. Gujarat Fluoro Chemicals reported in (2014)1 SCC 126 wherein, the Apex Court did maintain the aspect of interest by way of compensatory measure but did not approve the interest on such interest while considering the aspect of compensatory measure. At this stage, we may refer to the recent decision of this Court in case of Gujarat Flouro Chemicals Ltd. V/s. Commissioner of Income Tax and others in S .....

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to 17 observed thus:- "11. In the case of Sandvik Asia Limited Vs. Commissioner of Income Tax & Others (supra), it is true that the matter was pertaining to the payment of advance tax and the Apex Court also found that there was harassment and agony to the Assessee, but on the aspect of compensation to the Assessee, the Apex Court, in the said decision under the head as to whether on general principles the Assessee ought to have been compensated for the inordinate delay in receiving mon .....

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contrary to the provisions of the Act, on general principles it ought to be compensated for such deprivation. In the impugned order, the Bombay High Court has held that no compensation is required to be paid since ... there was a serious dispute between the parties, which was ultimately ordered to be paid pursuant to the order passed by this Court on 30.04.1997. Undisputedly, the amount pursuant thereto was paid on 27.03.1998. ... The Court further held that since the amount was paid once the c .....

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mpensation to the party deprived must follow. If the decision of the High Court is upheld it would mean that there can never be any wrongful retention by an authority until this Court holds that their stand is not in accordance with law. Therefore, that on this issue as well, the impugned judgment cannot be sustained and ought to be reversed. In the present context, it is pertinent to refer to the Circular on Trade Notice issued by the Central Excise Department on the subject of refund of deposi .....

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eposits should be returned in the event the appellant succeeds in appeal or the matter is remanded for fresh adjudication. 2. It would be pertinent to mention that the Revenue had recently filed a Special Leave Petition against Mumbai High Court's order in the matter of NELCO LTD, challenging the grant of interest on delayed refund of predeposit as to whether : (i) the High Court is right in granting interest to the depositor since the law contained in Section 35F of the Act does in no way p .....

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it can well be construed in the light of its earlier judgment in the case of Suvidhe Ltd. and Mahavir Aluminium that the law relating to refund of predeposit has become final. 3. In order to attain uniformity and to regulate such refunds it is clarified that refund applications under Section 11B(1) of the Central Excise Act, 1944 or under Section 27(1) of the Customs Act, 1962 need not be insisted upon. A simple letter from the person who has made such deposit, requesting the return of the amoun .....

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deposits and which are pending with the authorities will also be treated as simple letters asking for return of the deposits, and will be processed as such. Similarly, bank guarantees executed in lieu of cash deposits shall also be returned. 4. The above instructions may be brought to the notice of the field formations with a request to comply with the directions and settle all the claims without any further delay. Any deviation and resultant liability to interest on delayed refunds shall be vi .....

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e date of the order passed by the Tribunal, Court or other fiscal authority unless there is a stay on the order of the fiscal authority, tribunal, court by a superior court. The Department has very clearly stated in the above circular that the delay beyond the period of 3 months in such cases will be viewed adversely and appropriate disciplinary action will be initiated against the concerned defaulting officers, a direction was also issued to all concerned to note that defaulter will entail a in .....

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and compliance reported and that the Board has also decided to implement the orders passed by the Tribunal already passed for payment of interest and the interest payable shall be paid forthwith. The facts and the law referred to in paragraph (supra) would clearly go to show that the appellant was undisputably entitled to interest under Sections 214 and 244 of the Act as held by the various High Courts and also of this Court. In the instant case, the appellant's money had been unjustifiably .....

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ensation for this period of delay. The High Court has failed to appreciate that while charging interest from the assesses, the Department first adjusts the amount paid towards interest so that the principle amount of tax payable remain outstanding and they are entitled to charge interest till the entire outstanding is paid. But when it comes to granting of interest on refund of taxes, the refunds are first adjusted towards the taxes and then the balance towards interest. Hence as per the stand t .....

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the assesses amounts of interest lawfully and admittedly due to that as has happened in the instant case. It is a case of the appellant as set out above in the instant case for the assessment year 197879, it has been deprived of an amount of ₹ 40 lakhs for no fault of its own and exclusively because of the admittedly unlawful actions of the Income Tax Department for periods ranging up to 17 years without any compensation whatsoever from the Department. Such actions and consequences, in ou .....

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t of his injury; the consideration or price of a privilege purchased; some thing given or obtained as an equivalent; the rendering of an equivalent in value or amount; an equivalent given for property taken or for an injury done to another; the giving back an equivalent in either money which is but the measure of value, or in actual value otherwise conferred; a recompense in value; a recompense given for a thing received recompense for the whole injury suffered; remuneration or satisfaction for .....

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ecific provision has been made under the statute, such provision has to govern the field. Therefore, the Court has to take all relevant factors into consideration while awarding the rate of interest on the compensation. (Emphasis supplied) 12. The aforesaid shows that in the above referred decision, the Apex Court did maintain that the interest on the amount of refund, if provided by the statute, such would govern the field, but the Court has to take all relevant factors into consideration while .....

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e judgement, the court while compensating the assessee had directed the Revenue to pay a compensation by way of interest for two periods, namely; for the assessment years 197778, 197879, 198182, 198283 in a sum of ₹ 40,84,906 and interest at 9 per cent from March 31, 1986, to March 27, 1998, and in default, to pay the penal interest at 15 per cent, per annum for the aforesaid period. 6. In our considered view, the aforesaid judgment has been misquoted and misinterpreted by the assessees an .....

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to wait for refund of interest for decades be compensated for the great prejudice caused to it due to the delay in its payment after the lapse of statutory period. In the facts of that case, this Court had come to the conclusion that there was an inordinate delay on the part of the Revenue in refunding certain amount which included the statutory interest and therefore, directed the Revenue to pay compensation for the same not an interest on interest. 14. The aforesaid shows that in the latter de .....

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lusion that there was inordinate delay on the part of the Government to refund certain amount, which includes statutory interest and, therefore, directed the Revenue to pay compensation for the same, but not interest on interest. 15. In our view, as per the above referred observations of the Apex Court in the case of Commissioner of Income Tax, Gujarat Vs. Gujarat Fluoro Chemicals (supra), obligation on the part of the Government to pay compensation for nonpayment of the statutory interest by wa .....

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