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TMI Blog2024 (8) TMI 1552X X X X Extracts X X X X X X X X Extracts X X X X ..... long with interest and penalty. 3. This led to the sole proprietorship, M/s Decent Overseas, preferring an appeal before the CESTAT and which came to be allowed along with consequential reliefs. 4. Pursuant to the closure of the aforesaid litigation, a refund claim is stated to have been filed on 14 October 2019. It is the aforesaid application which remained undisposed constraining the writ petitioner to approach this Court by way of the present writ petition. 5. We are also informed that the present claim of refund is being prosecuted by the widow of the erstwhile sole proprietor and who is survived by family members whose details are duly recorded in the certificate dated 12 July 2023 issued by the Government of NCT of Delhi. 6. From the affidavit which has been filed by the respondents in the present proceedings, it is contended that a deficiency memo was issued to the writ petitioner on 12 July 2024 requiring further documentation. It is their case, that subject to the aforesaid compliance being affected, they would be "willing to proceed with the refund". 7. We find ourselves unable to appreciate the stand as struck bearing in mind the undisputed position that the claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purposes of adjustment. According to Mr. Gulati, the aforesaid position is no longer res integra and stands duly settled in light of the judgment of the court in MRF Ltd. v. Commissioner of Trade and Taxes [2019] 66 GSTR 313 (Delhi) ; [2018] SCC OnLine Del 10624. Mr. Gulati referred to the following passages from that decision (pages 316-319 in 66 GSTR) : "3. The learned counsel for the Revenue contends that the local sales tax authorities' decision not to grant interest on refund amount is justified because the provision of section 30 of the Delhi Sales Tax Act, 1975 requires that the assessee who wishes to claim refund of tax paid should approach the authority in a particular manner (by filing form ST 21). It is submitted that the interest amounts would be due only from the time that procedure was followed and not before and that interest would be permissible only in accordance with that provision, i. e., section 30(4) in the event the 90 days elapse. In this case, the judgment of the court was delivered on May 14, 2015 and the petitioner approached the Sales Tax Department on July 22, 2015 and November 20, 2015. The Delhi Sales Tax authority's appeal by way of special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stances, the petition succeeds. The impugned show-cause notice, which is annexed at exhibit F to the petition, is quashed and the respondents are directed to forthwith refund the aforesaid amount of Rs. 14,07,410 along with interest thereon at the rate of 15 per cent. p. a. from the date of the order of the Appellate Tribunal, i. e., from November 30, 1993 till payment. 4. Rule is made absolute in the aforestated terms. Respondents will pay the petitioners the cost of the petition.' 4. The Supreme Court endorsed the view of the Bombay High Court. In Nestle India Limited (supra), the Karnataka High Court following the same thread of reasoning, held that the pre-deposit amount was not towards tax but rather to avail the remedy of an appeal. The subsequent judgment in W. S. Retail (supra) was rendered especially in the context of the provisions of the Karnataka VAT Act and other enactments. It relied upon the logic in Suvidhe (supra) and Nestle (supra) and stated as follows : '42. To the same effect, the Division Bench of the Delhi High Court in Voltas Limited v. Union of India (1999) 112 ELT 34 (Delhi), also held that the pre-deposit under section 35F of the Act is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r extending the benefit under the 'Amnesty Scheme', giving credit to a sum of Rs. 75,000 paid by him vide exhibit P2, as payment towards a portion of the liability under the scheme, and effect appropriation, in tune with the terms of the Scheme".' 5. It is clear from the above discussion that pre-deposit sums which the assessee is compelled to pay to seek recourse to an appellate remedy, do not necessarily bear the stamp or character of tax, especially when it succeeds on the particular plea. That being the case, the insistence upon a procedural step, i. e., filing of a form which is purely for the purpose of administrative convenience cannot in any manner fix the period or periods of limitation when the amounts became due on the question of interest. The fact that the amounts were due and payable from the date the appeal was allowed is not in dispute. In these circumstances, the postponement of the period from when interest became calculable is incomprehensive and illogical. For these reasons the petitioner is entitled to interest calculable from the date when its appeal was allowed by this court by order dated May 14, 2015 (MRF Limited v. Commissioner of Trade and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioners' contention that they are entitled to interest from the date of the final order of the CESTAT, is justified and warranted. As to the second submission made with respect to the invalidity of section 35FF on account of its prospective nature, the court recollects that the provisions of law ought not to be read in a manner so as to invalidate them. In view of the interpretation preferred by the above judgment, the alleged unconstitutionality no longer subsists." 26. Our attention was also drawn to a recent decision rendered by this court in Otis Elevator Company (India) Ltd. v. Commissioner of Value Added Tax [2023] 119 GSTR 343 (Delhi)* where upon noticing MRF Ltd., we had held as follows (pages 350 and 352-355 in 119 GSTR) : "11. MRF Limited has unequivocally held that a deposit made in terms of a provision connected with the preferment of an appeal cannot be treated to be tax or duty. In fact that is the position which has been consistently held by various courts as would be evident from the discussion which follows. It thus remains undisputed that a pre-deposit cannot partake the character of a tax or duty. This since, it would clearly be connected only with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is bound to be refunded when the appeal is allowed with consequential relief. 4. In respect of such a deposit the doctrine of unjust enrichment will be inapplicable. In the circumstances, the petition succeeds. The impugned show-cause notice, which is annexed at exhibit F to the petition, is quashed and the respondents are directed to forthwith refund the aforesaid amount of Rs 14,07,410 along with interest thereon at 15 per cent. p.a. from the date of the order of the Appellate Tribunal, i. e., from November 30, 1993 till payment. 5. Rule is made absolute in the afore-stated terms. The respondents will pay the petitioners the costs of the petition.' 16. We further find that the Supreme Court in Commissioner of Customs v. Finacord Chemicals P. Ltd. [2015] 32 GSTR 370 (SC) ; (2015) 15 SCC 697 reiterated the aforesaid position as would be evident from paragraphs 17 and 18 of the report which are extracted hereinbelow (pages 378 and 379 in 32 GSTR) : '17. It is the order dated August 7, 1996 which was passed by this court in Union of India v. Suvidhe Ltd. (Union of India v. Suvidhe Ltd. (2016) 11 SCC 808 ; [1997] 94 ELT A-159 (SC)) dismissing the special leave ..... X X X X Extracts X X X X X X X X Extracts X X X X
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