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TMI Blog2021 (10) TMI 687X X X X Extracts X X X X X X X X Extracts X X X X ..... lication for condonation of delay. 4. Upon hearing learned counsel for the parties and considering the averments made in the interim application, delay in filing review petition is condoned. 5. Insofar the review petition is concerned, we may note that the related writ petition was filed seeking the following reliefs :- "2. By filing this petition under Articles 226/227 of the Constitution of India, petitioner seeks a direction to the respondents to refund an amount of Rs. 4,73,26,512.00 alongwith appropriate interest following encashment of eights bank guarantees dated 26th October, 2018 bearing Nos.0005BG00008819, 0005BG00008919, 0005BG0000 9019, 0005BG00009119, 0005BG00009219, 0005BG000 09319, 0005BG00009419 and 0005BG00009519 of ICICI Bank by respondent No.4." 6. During the pendency of writ proceedings, the writ court had summed up the grievance of the petitioner vide order dated 10.07.2019 which reads as under :- "1) This petition under Article 226 of the Constitution of India challenges the action of the respondents in encashing 8 bank guarantees on 29th March 2019 aggregating to Rs. 4.72 crores. This encashment of bank guarantee was done consequent to the order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Respondents is payable by the Petitioner in case the Petitioner fails in his challenge, after deducting the amounts paid by the Petitioner and after encashment of bank guarantee. 4) Place the Petition on board under the caption, 'For Directions' on 21 January, 2020. By this date we expect a positive statement from the Respondents regarding the above aspect. The Petitioner has produced a calculation sheet and states the same will be furnished to the Respondent authorities for their reference." 8. Finally, by the judgment and order dated 15.09.2020, the writ petition was allowed. Relevant portion of the judgment and order dated 15.09.2020 reads as under :- "22. From the pleadings and the orders passed by this court the controversy in this case has narrowed down considerably; rather it now lies within a narrow compass. 23. 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. 24. As against this, petitioner had paid IGST ofRs. 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 fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against is communicated to the aggrieved person. As per sub-section 8(b), no appeal shall be filed under sub- section (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. 27. Section 115 provides for payment of interest on refund of amount paid for admission of appeal. It say that where an amount paid by the appellant under sub-section (6) of Section 107 or sub-section (8) of Section 112 is required to be refunded consequent to any order of the appellate authority or of the appellate tribunal, interest at the rate specified under Section 56 shall be payable in respect of such refund from the date of payment of the amount till the date of refund of such amount. Reverting to Section 56, we find that this section deals with interest on delayed refunds. Section 54, more particularly sub-section (5) thereof, deals with refund of tax. Section 56 says that if any tax is ordered to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention or seizure, shall be released,-- (a) on payment of penalty applicable tax and penalty equal to two hundred per cent. of the tax payable on such goods and, in case of exempted goods, on payment of an amount equal to two per cent. of the value of goods or twenty-five thousand rupees, whichever is less, where the owner of the goods comes forward for payment of such penalty; (b) on payment of penalty equal to fifty per cent. of the value of the goods or two hundred per cent. of the tax payable on such goods, whichever is higher, and in case of exempted goods, on payment of an amount equal to five per cent. of the value of goods or twenty-five thousand rupees, whichever is less, where the owner of the goods does not come forward for payment of such penalty; (c) upon furnishing a security equivalent to the amount payable under clause (a) or clause (b) in such form and manner as may be prescribed: Provided that no such goods or conveyance shall be detained or seized without serving an order of detention or seizure on the person transporting the goods. (2) The provision of sub section (6) of section 67 shall, mutatis mutandis, apply for detention and seizure of goods and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of goods in the vehicle. D) At any rate the refund is governed by section 54 of Central Goods and Services Tax Act 2017 read with Integrated Goods And Service Tax 2017 and the person who claims refund of any sum paid in excess has to follow in first place procedure as per Section 54. The Hon'ble Court ought to have directed the Petitioner in the Writ Petition to follow due procedure laid down in law instead of invoking provisions of Article 226. The amount paid by the taxpayer is credited to the cash ledger and in order to refund the same, it needs to be debited to the cash ledger of the tax payer and the process can be initiated only by the refund application under Section 54 of the CGST Act. E) At any rate if at all Petitioner is entitled to refund, it is entitled to refund of only Rs. 70,98,977.00 and not Rs. 4,73,26,512.00. If the refund of Rs. 4,73,26,512.00 is to be granted, the dealer needs to submit fresh bank guarantee of Rs. 4,02,27,535.00 (Rs. 4,73,26,512.00 minus Rs. 70,98,977.00). F) As per Section 17 of the Integrated Goods and Service Tax Act 2017 (IGST Act), the revenue of IGST is for Central Government and upon recovery of the sums of Rs. 4,73,26,512.00 in to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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