Page 94 - GSTL_23rd July 2020_Vol 38_Part 4

460 GST LAW TIMES [ Vol. 38
ground that the demand was barred by limitation; (ix) that the petitioner vide
application dated 2nd May, 2018 sought refund of Rs. 2,38,00,000/- deposited on
27th October, 2006; (x) that the respondents challenged the order dated 22nd
February, 2018 of the Tribunal before this Court by filing SERTA No. 23/2018,
which was dismissed by this Court vide order dated 24th August, 2018, on the
ground that no question of law arose; resultantly, the order of the Tribunal al-
lowing the appeal of the petitioner was affirmed; (xi) that the petitioner again, on
11th March, 2019 sought refund of the amount aforesaid and on refund not being
made, submitted reminders dated 16th April, 2019, 14th May, 2019 and 12th
June, 2019; and, (xii) that the respondents, on the claim of the petitioner for re-
fund, conducted a hearing on 20th August, 2019 but still failed to refund the said
sum of Rs. 2,38,00,000/- to the petitioner.
3. The petition came up first before this Court on 13th December, 2019
and thereafter on 17th December, 2019, when notice thereof was issued and it
was ordered that in case the amount sought by the petitioner is refundable, the
respondents should ensure that the amount is refunded with interest within four
weeks therefrom. However, till 25th February, 2020, neither refund had been
made nor any action taken pursuant to the order dated 17th December, 2019.
During the hearing on 25th February, 2020, the Counsel for the respondents as-
sured this Court that refund orders will be issued by the next date of hearing.
Finding that there was no compliance, neither of the order dated 17th December,
2019 nor of the order dated 25th February, 2020, vide order dated 3 March, 2020,
contempt notice was issued to the respondents, clarifying that in case the amount
due to the petitioner was refunded with interest within one week therefrom, the
contempt notice shall stand automatically discharged. The matter could not be
taken up on the next date i.e. 16th March, 2020, owing to the prevalent Covid-19
situation.
4. The petitioner filed CM No. 10820/2020 for early hearing and which
was taken up on 13th May, 2020. It was the stand of the Counsel for the respond-
ents on that date that the reasons for not complying with the orders were set out
in a counter affidavit which remained to be filed. Vide order dated 13th May,
2020, the counter affidavit was permitted to be filed and the application for early
hearing allowed and the writ petition posted for hearing for today.
5. The respondents, in their counter affidavit have pleaded (a) that
show cause notice dated 28th July, 2008 proposing a demand of Rs. 4,66,39,021/-
along with interest and penalty was issued to the petitioner and out of which a
sum of Rs. 2,38,00,000/- had been deposited by the petitioner under protest; (b)
that on the said show cause notice being adjudicated in favour of the petitioner,
on 12th March, 2019, a refund application was filed by the petitioner; (c) that re-
fund sanction order was drafted by the then Assistant Commissioner but nega-
tive observations were raised by the pre-audit branch, Central GST Commission-
erate, Delhi East and hence the refund application was rejected; (d) that the peti-
tioner was informed of the said rejection of refund and was given an opportunity
of personal hearing on 20th August, 2019, before processing the refund applica-
tion; (e) that final rejection refund order signed on 13th September, 2019 was dis-
patched to the petitioner on 19th September, 2019 but was received back unde-
livered; (f) however, on 19th September, 2019 itself the petitioner was telephoni-
cally communicated the final rejection refund order dated 13th September, 2019;
(g) that the petitioner has concealed the said facts; and, (h) that the refund appli-
cation having been adjudicated vide final rejection refund order dated 13th Sep-
tember, 2019, the same has attained finality and the only remedy available to the
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