Page 92 - GSTL_23rd July 2020_Vol 38_Part 4

458 GST LAW TIMES [ Vol. 38
Refund - Amount deposited under protest - Petitioner seeking refund
of amount by calling it “pre-deposit”, when amount not deposited by way of
pre-deposit but under protest, even before any demand was raised and while
petitioner was still being investigated against - Such deposits under protest, to
ease rigors which Tax Authorities otherwise are entitled to impose, are not un-
known and judicial notice has been taken thereof - However as long as
amount deposited is under protest and in which protest, no grounds required
to be stated, no right thereto accrues in favour of depositee till depositee held
entitled in law thereto - Wrong nomenclature given by petitioner to deposit
not to be ground for allowing State to unduly enrich themselves - Article 265
of Constitution of India. [para 13]
Interest on delayed refund - Rate, enhancement of - Amount of
` 2,38,00,000 deposited by petitioner of its own volition, during au-
dit/investigation, though under protest - Refund of said amount sought vide
letter dated 2nd May, 2018 - Petitioner entitled to interest @ 6% per annum
from date of deposit, i.e., 27th October, 2006 till end of May, 2018, i.e.,
31st May, 2018 - However, in view of non-compliance of orders of Court lead-
ing to contempt notice being issued to State and in absence of justification for
State in retaining said amount thereafter, State liable for interest with effect
from 1st June, 2018 onwards and till date @ 7.5% per annum - Article 226 of
Constitution of India. [paras 17, 18, 19, 20, 21]
Writ jurisdiction - Statutory remedy - Absence of - Petitioner seeking
refund of amount deposited during investigation - When reasons disclosed in
order refusing refund found to be illogical and de hors statutory provision and
further when State found to be illegally withholding money, case for issuing
mandamus as sought, to be made - Article 226 of Constitution of India. [para
15]
Petition disposed of
CASES CITED
Commissioner of Income Tax v. Shelly Products — (2003) 5 SCC 461 — Referred ...................... [Para 11]
Ebiz.com Pvt. Ltd. v. Commissioner — 2017 (49) S.T.R. 389 (All.) — Referred ............................. [Para 19]
Hello Minerals Water Pvt. Ltd. v. Union of India
— 2004 (174) E.L.T. 422 (All.) — Referred ................................................................................. [Para 19]
Hindustan Coca-Cola Beverages Pvt. Ltd. v. Union of India
— 2015 (324) E.L.T. 299 (Guj.) — Referred ................................................................................ [Para 19]
Indglonal Investment and Finance Ltd. v. Income Tax Officer
— (2012) 343 ITR 44 — Relied on ................................................................................................ [Para 13]
Mafatlal Industries Ltd. v. Union of India — 1997 (89) E.L.T. 247 (S.C.) — Relied on ........... [Paras 12, 13]
Sandvik Asia Ltd. v. Commissioner of Income Tax
— 2006 (196) E.L.T. 257 (S.C.) — Referred ................................................................................. [Para 19]
Surinder Singh v. Union of India — 2006 (204) E.L.T. 534 (Del.) — Referred ................................ [Para 19]
DEPARTMENTAL CLARIFICATIONS CITED
C.B.E. & C. Circular No. 984/08/2014-CX., dated 16-9-2014 ........................................................ [Paras 2, 6]
C.B.E. & C. Master Circular No. 1053/02/2017-CX., dated 10-3-2017 .............................................. [Para 2]
REPRESENTED BY : Shri J.K. Mittal, Ms. Vandana Mittal and Ms. Aarti
Sharma, Advocates, for the Petitioner.
Ms. Niharika Gupta, Assistant Commissioner,
S/Shri P.S. Singh, Kuldeep Singh and Gurmeet,
Advocates, for the Respondent.
GST LAW TIMES  23rd July 2020  92