TMI Blog2022 (8) TMI 987X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of the appellate authorities. The order of CESTAT and the Commissioner (Appeals) is binding on respondent no.3. The principles of judicial discipline require that the orders of the higher appellate authorities should be followed unreservedly by the subordinate authorities. The mere fact that the order of the appellate authority was not acceptable to the department in itself would be an objectionable phrase and is the subject matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent court. The Apex Court has held that if this healthy rule is not followed, the result will only be undue harassment to assessees and chaos in administration of tax laws. As there is no stay gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the refund claims on the ground that they are time barred. The show cause notices purported to treat the reminder letters sent to the authorities after petitioner had succeeded in judicial/quasi judicial proceedings and were entitled to a refund, as fresh refund. Respondents are treating the same as fresh refund claims and alleged that it is time barred. 3. Petitioner is engaged in the business of various types of back office services largely outside India alongwith certain group entities within India. Since petitioner exports majority of its services to overseas entities, petitioner is not in a position to utilise the accumulated CENVAT credit. 4. During the usual course of business, petitioner filed applications for refund claimin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g in this Court. Admittedly, no stay has been granted. As regards the order dated 5th January 2016 for the period September 2004 to June 2005, we are informed that no appeal has been filed in this Court. 7. As no refund was forthcoming from the department, petitioner made innumerable trips to make oral request and finally followed it up with letter dated 9th January 2020 seeking refund aggregating to Rs.6,61,46,240/-. Petitioner also claimed interest on the refund amount. Reminders were sent and also respondents were informed about circulars issued by the Central Board for Indirect Taxes which state that when the department wants to file an appeal against the order of CESTAT, the amounts payable under the orders of CESTAT would be payabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 refund claims for 10 quarters, i.e., April 2014 to March 2017 claiming an aggregate sum of Rs. 13,90,26,197/-. All the 10 refund claims were rejected by the adjudicating authority. Against the said order, 10 appeals were filed before the Commissioner (Appeals). By an order dated 27th February 2018, the Commissioner (Appeals) passed an order with respect to 8 quarters partially allowing various refunds as set out in the said order. No appeal has been filed by the department against the said order. On 20th June 2018, the Commissioner (Appeals) passed an order in respect of the remaining 2 quarters, i.e., October 2016 to March 2017 partially granting various refunds as set out in the said order. Copies of these two orders are annexed to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e action of respondent but could not get over the hurdle that there is no stay granted against the order passed by CESTAT with respect to the refund application for October 2006 to September 2007 and as regards refund application for September 2004 to June 2005 and the second set of 10 refund applications, respondent has not even filed an appeal challenging the refund orders passed by CESTAT/the Commissioner (Appeals). 12. This Court in Karanja Terminal Logistic Pvt. Ltd. V/s. Principal Commissioner of Income Tax Ors. Writ Petition No.1397 OF 2020 dated 31st January 2022 following the judgment of the Apex Court in Union of India and Ors. V/s. Kamlakshi Finance Corporation Ltd. AIR 1992 SC 711 has held that it is of utmost imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund claims have been filed within time and having been rejected. This Explanation comes into play only when the tax demand is set aside giving rise to a refund. 14. In the circumstances, we hereby allow this petition and make the Rule absolute in terms of prayer clauses (a), (b) and (c), which read as under : (a) that this Honourable Court be pleased to issue a writ of Certiorari or a writ in the nature of certiorari calling for the papers pertaining to this matter and after going into the validity thereof to quash and set aside the impugned Show Causes dated 22.12.2021 (Exhibit -E1 and E2 hereto). (b) that this Honourable Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
