TMI Blog2022 (4) TMI 1209X X X X Extracts X X X X X X X X Extracts X X X X ..... wrong of in action of withdrawing appeal. In that case there was no reason for the Petitioners to apply under the scheme and consequential deposit of amount as per the declaration. In all fairness, the Taxing Department cannot enrich itself by unauthorized collection of the amount which needs to be refunded - the Respondents are directed to refund the sum of ₹ 90,92,263/- to the Petitioners, within three months from the communication of this order - petition allowed. - WRIT PETITION NO. 2407 OF 2021 - - - Dated:- 25-3-2022 - S. V. GANGAPURWALA AND VINAY JOSHI, JJ. Mr. Rohan P. Shah a/w Mr. Sri Sabari Rajan, Ms Surabhi Prabhudesai i/b Vashi Vashi, Advocates for the Petitioners. Mr. J. B. Mishra a/w Ms. Sangeeta Yadav for the Respondents. JUDGMENT PER VINAY JOSHI, J. . Rule . Rule made returnable forthwith. Heard finally by consent of the parties. 2. The present Writ Petition has been fled under Article 226 of the Constitution of India seeking refund of sum of ₹ 90,92,263/- which was deposited under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 (SVLDRS Scheme). The refund is sought on the premise that the withdrawal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nuary, 2020 directing the Petitioners to deposit 50% of the amount i.e. ₹ 90,92,263/- within stipulated period. Accordingly, on 24th February, 2020, the Petitioners have deposited the amount to avail the benefit of the scheme. 6. In pursuance of the CBIC instructions dated 22nd August, 2019 and follow-up instructions dated 14th October, 2019, the Tax Department has applied for withdrawal of the pending appeal before the Supreme Court. Accordingly appeal was came to be dismissed for withdrawal by the Supreme Court vide common order dated 16th November, 2020 for which there is no dispute. 7. It is the Petitioners contention that there were no monetary dues as the tax demand was set aside by CESTAT in appeal. The Tax Department though fled appeal, it was came to be withdrawn as per the Government Policy. The entire thrust of the argument is on the point that, the Tax Department has received the CBIC instructions for withdrawal of appeal on 22nd August, 2019 and follow-up instructions on 14th October, 2019, still they have accepted the Petitioners declaration and raised demand under the scheme. According to the Petitioners, since the policy decision was taken to withdraw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uctions issued in terms of Section 35 R of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994. The Petitioners learned Counsel would submit that the departmental instructions / circulars are having a force of law. To substantiate said contention reliance is placed on the decision of the Supreme Court in cases of Paper Products Ltd. V/s. Commissioner of Central Excise 1999 (112) E.L.T. 765 (S.C.) and Catholic Syrian Bank Limited V/s. Commissioner of Income Tax, Thrissur (2012) 3 SCC 784 In view of said dicutm, there can be no dispute about the binding nature of CBIC circular nor the said point is agitated by the Respondents. 11. The Petitioners would contend that due to raising of monetary limit by virtue of CBIC instructions for fling appeals by the Tax Department to the extent of 2 crores, the appeal filed by the Tax Department was liable to be withdrawn meaning thereby ceases its effect. It is the bone of contention that despite receipt of CBIC instructions dated 22nd August, 2019 and follow-up instructions dated 14th October, 2019, the authorities have accepted the Petitioners declaration form fled under the scheme on 13th December, 2019 and r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Petitioners learned Counsel has attracted our attention to the Article 265 of the Constitution of India, to contend that the tax shall not be levied or collected except under authority of law. It is the submission that since the department was under instructions to withdraw the appeal, they have no authority of law to still raise the monetary demand. Apparently, the action of designated committee in raising demand by issuing SVLDRS Form No. 3 was without the authority of law, therefore, the Constitutional mandated has to be followed. 15. Though Section 130 of the Act makes inbuilt provision for non issuance of refund, however, it is to be read in context. The Petitioners have not availed the benefit of the scheme. The departmental appeal was not withdrawn under the scheme but by virtue is Government Policy. Bare perusal of the order dated 16th December, 2020 passed in appeal by the Supreme Court would clarify the position, which reads as below: In terms of the change brought in the litigation policy of the Government deciding to withdraw all the matters pending for adjudication before this Court in which tax effect/revenue involved is less than Rupees Two Crore, learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s attained finality by CBIC instructions, meaning thereby the finality is about no dues from declarant. Clause (iii) contemplates wholely different situation, hence it is irrelevant for our purpose. 18. The claimed amount also does not find place within the conspectus of the term amount of duty within the meaning of Section 121 (d) of the Finance Act. The said provisions reads as below: Section 121(d) amount of duty means the amount of central excise duty, the service tax and the cess payable under the indirect tax enactment ; The key word payable would not attract the situation. We may reiterate that as the CESTAT decided in favour of declarant, nothing was payable on his part. Moreover due to CBIC instructions, it has achieved the finality. It was the department s appeal to the Supreme Court, therefore, it cannot be said that the Petitioners were in arrears of amount or anything was due or payable from them. 19. The full bench of this Court in the case of New India Industries Ltd. and Another V/s. Union of India and Another AIR 1990 Bombay 239 crystallizes the position by stating that it is the mandate of Article 265 of the Constitution of India that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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