TMI Blog2023 (2) TMI 536X X X X Extracts X X X X X X X X Extracts X X X X ..... inciples of restitution and by way of compensation for the loss caused to the petitioner on account of illegal and wrongful deprivation of the aforesaid amount by the respondents, the petitioner would be entitled to interest for the aforesaid period and consequently, the impugned order deserves to be set aside on this ground also. The 3rd respondent has committed an error in recording an erroneous finding that the aforesaid amount of Rs.4,73,26,512/- encashed under the bank guarantees was available with the petitioner during the aforesaid period from 29.03.2019 till 05.01.2022; this finding recorded by the 3rd respondent in the impugned order is clearly and factually incorrect and contrary to the material on record, which indicates that pursuant to encashment of the 8 bank guarantees, the respondents had appropriated the said amount and prevented the petitioner of its use and benefit till the same was actually refunded only on 05.01.2022 and as such, even this finding recorded by the 3rd respondent in the impugned order deserves to be set aside. The aforesaid facts and circumstances and the material on record clearly indicate that the impugned order passed by the 3rd responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said order. 3.1 It is further submitted that though no appeal was preferred by the revenue against the said order of the Bombay High Court, a review petition in R.P.No.98390/2020 was preferred by the revenue and the same was also dismissed by the Bombay High Court vide final order dated 04.10.2021. Thus the order of the Bombay High Court holding that the encashment of the bank guarantees by the GST authorities was illegal and directing refund of the aforesaid sum of Rs.4,73,26,512/- together with applicable statutory interest back to the petitioner attained finality and became conclusive and binding upon the respondents. 3.2 Subsequently, petitioner initiated contempt proceedings in C.P.No.318/2021 against the GST officials, pursuant to which, the GST authorities issued a letter dated 22.10.2021 to the petitioner calling upon the petitioner to file a refund application in terms of Section 54 of the CGST Act and Rule 89 of the CGST Rules. The petitioner submitted a reply dated 06.11.2021 enclosing the refund application. However, the petitioner specifically stated that the refund applications dated 24.11.2021, 30.12.2021 and 30.12.2021 had been filed only at the instance/insis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner. In this context, a perusal of the judgment of the Bombay High Court will indicate that the respondents were directed to refund the said amount together with applicable statutory interest thereon, within a period of four weeks. A plain reading of the directions issued by the Bombay High Court will clearly indicate that the petitioner was declared to be entitled to the aforesaid sum of Rs.4,73,26,512/- together with applicable statutory interest and that the said amount together with interest was liable to be paid by the respondents to the petitioner within a period of four weeks from the date of receipt of a copy of the order. 7. In other words, the Bombay High Court not only directed refund of the amount of Rs.4,73,26,512/- covered by the bank guarantee but also directed refund of applicable statutory interest by the respondents in favour of the petitioner. Under these circumstances, the reasoning of the 3rd respondent in the impugned order that the petitioner was not entitled to interest in terms of the judgment of the Bombay High Court is clearly erroneous and the same deserves to be set aside. 8. A perusal of the impugned order passed by the 3rd respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions 54, 56 or 115 and as such, on this score also, the erroneous findings recorded by the 3rd respondent in the impugned order deserve to be set aside. 10. The 3rd respondent also committed an error in holding that in the absence of any statutory provision, petitioner would not be entitled to any interest on the refund amount. In this context, as held by the Apex Court and other High Courts in the aforesaid judgments, even in the absence of any statutory provision, in the light of the undisputed fact that the respondents illegally retained and withheld the amounts legally belonging to the petitioner during the period from 29.03.2019 when the bank guarantees were encashed up to 05.01.2022 when the amounts covered thereunder were refunded back to the petitioner, even in the absence of any statutory provision, the petitioner would be entitled to interest at a reasonable rate on the said amount for the aforesaid period and viewed from this angle also, the impugned order is unsustainable and deserves to be set aside. 11. The undisputed material on record discloses that the petitioner has been wrongly and without any fault on its part been deprived of the use, utilisation and ben ..... X X X X Extracts X X X X X X X X Extracts X X X X
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