Page 93 - GSTL_23rd July 2020_Vol 38_Part 4

2020 ] TEAM HR SERVICES PVT. LTD. v. UNION OF INDIA 459
[Order per : Rajiv Sahai Endlaw, J. (Via Video Conferencing)]. - This
petition under Article 226 of the Constitution of India seeks mandamus, directing
the Assistant Commissioner, Central Tax, GST- Delhi East, GST Division, to
forthwith refund with interest, “pre-deposit” of Rs. 2,38,00,000/- made by the
petitioner; it is stated that the appeal preferred by the petitioner against the order
dated 3rd October, 2011 passed by the Commissioner, has been finally allowed
by the Tribunal by order dated 22nd February, 2018 [2018 (13) G.S.T.L. 163 (Tri-
bunal)] and revenue appeal preferred whereagainst by the respondents to this
Court i.e. SERTA No. 23/2018 [2019 (25) G.S.T.L. 207 (Del.)], has been dismissed
on 24th August, 2018, declaring that the respondents had no right to retain the
said money of the petitioner.
2. It is the case of the petitioner, (i) that an audit/investigation was
conducted by the officers of the Service Tax Commissionerate, New Delhi, from
24th July, 2006 to 28th July, 2006, for the period 1st July, 2003 to 31st March, 2005
and a deposit of Rs. 2,38,00,000/- was made by the petitioner on 27th October,
2006, under protest, under pressure from the officers during the au-
dit/investigation of the service tax records, as the officers insisted on the deposit
by the petitioner, even without issuing any notice to show cause to the petitioner;
(ii) that the petitioner, vide letter dated 30th October, 2006, informed the re-
spondents that the deposit made on 27th October, 2006 was under protest and
vide letter dated 26th February, 2007, informed the Joint Commissioner of Ser-
vice Tax of the same and that despite lapse of a few months from the date of de-
posit, a show cause notice had not been received; (iii) that the Service Tax De-
partment issued a show cause notice dated 28th July, 2008 to the petitioner, de-
manding service tax of Rs. 4,66,39,061/- for the period of 1st July, 2003 to 31st
March, 2005, admitting that the petitioner [sic] had already deposited Rs.
2,38,00,000/- under protest on 27th October, 2006; (iv) that the Commissioner
(Adjudication) Service Tax, New Delhi passed the order dated 3 October, 2011 in
respect of the show cause notice dated 28th July, 2008 aforesaid, confirming the
demand with interest and penalty and appropriated the amount of Rs.
2,38,00,000/- aforesaid towards the same; (v) that the petitioner preferred an ap-
peal before the Customs, Excise & Service Tax Appellate Tribunal
(CESTAT)/Tribunal along with an application for interim stay; the Tribunal by
order dated 24th September, 2012 allowed the stay application, by waiving of
pre-deposit of the balance amount owing to deposit by the petitioner, though
under protest, of the said sum of Rs. 2,38,00,000/- and vide subsequent order
dated 15th October, 2013, it was clarified that the stay would continue to operate
till the pendency of the appeal; (vi) that vide Circular No. 984/08/2014-CX, dat-
ed 16th September, 2014 issued by the Central Board of Excise and Customs, De-
partment of Revenue, Ministry of Finance, it was clarified that when an appeal is
decided in favour of the assessee, the assessee is entitled to refund of amount
with interest under Section 35FF of the Central Excise Act, 1944 and such refund
should be made within fifteen days of receipt of letter seeking refund, irrespec-
tive of whether the Department was proposing to challenge the said order; (vii)
that vide Master Circular No. 1053/02/2017-CX, dated 10th March, 2017 issued
by the Board, it has further been clarified that when an appeal is decided in fa-
vour of assessee, the assessee is entitled for refund of the amount deposited
along with interest, from the date of making deposit till the date of refund and
such deposit is not payment of duty and will not be governed by the provisions
of Section 11B of the Central Excise Act; (viii) that the Tribunal, vide final order
dated 22nd February, 2018 allowed the appeal aforesaid of the petitioner, on the

GST LAW TIMES  23rd July 2020  93