Page 95 - GSTL_23rd July 2020_Vol 38_Part 4

2020 ] TEAM HR SERVICES PVT. LTD. v. UNION OF INDIA 461
petitioner is of filing of a statutory appeal thereagainst before the competent au-
thority.
6. A perusal of the final rejection refund order dated 13th September,
2019 shows that the same also does not dispute that the sum of Rs. 2,38,00,000/-
deposited by the petitioner on 27th October, 2006 was under protest and the said
order records, (I) that on the petitioner preferring appeal to CESTAT, because the
petitioner had already deposited more than 50% of the tax element, though un-
der protest, the condition of pre-deposit was waived; (II) that CESTAT set aside
the impugned order dated 3rd October, 2011 only on the question of limitation;
(III) that the petitioner had filed the refund claim well within the prescribed time;
(IV) that vide Circular dated 16th September, 2014, where the appeal is decided
in favour of the assessee, the assessee shall be entitled to refund of the amount
deposited along with interest at the prescribed rate from the date of making of
the deposit to the date of refund; (V) that the appeal preferred by the petitioner
had been decided in favour of the petitioner only on the question of limitation;
(VI) that the amount of Rs. 2,38,00,000/- had been deposited by the petitioner,
under protest, during the course of audit/investigation and not by way of pre-
deposit pursuant to appeal before the CESTAT - thus the Circular dated 16th
September, 2014 was not applicable to the facts, though pre-deposit for filing an
appeal is not payment of duty but the deposit by the petitioner of
Rs. 2,38,00,000/- was not by way of pre-deposit and the CESTAT had allowed
the appeal of the petitioner only on limitation, though not finding the petitioner
to be having a case on merit; (VII) that even the High Court in its order dated
24th August, 2018 had not gone into the merits of the case; (VIII) that thus the
deposit of Rs. 2,38,00,000/- by the petitioner, though under protest, was made
against service tax liability and which liability had not been decided in any of the
Court’s orders; (IX) that therefore the claim of refund of the amount of Rs.
2,38,00,000/- was not admissible; (X) that none of the judgments cited by the
Counsel for the petitioner dealt with treating the amount deposited by way of
tax, though under protest, to be a pre-deposit for refund purpose; and, (XI) that
thus the amount of Rs. 2,38,00,000/- deposited by the petitioner against service
tax liability and which liability had not been set aside by CESTAT, was not re-
fundable.
7. The purport of the aforesaid order of the respondents declining re-
fund to the petitioner and which forms the defence of the respondents to this
petition, is that since the petitioner had deposited the said amount of
Rs. 2,38,00,000/-, even though under protest, before preferring the appeal to
CESTAT and not by way of pre-deposit under Section 35F of the Central Excise
Act, notwithstanding the appeal of the petitioner against total demand of Rs.
4,66,39,061/-, and in which the said sum of Rs. 2,38,00,000/- had been adjusted,
being allowed, the petitioner was not entitled to refund of Rs. 2,38,00,000/-.
8. We have enquired from the Counsel for the respondents, whether
not the aforesaid logic in the order declining refund, leads to a absurd situation
where, the respondents, notwithstanding their demand for the entire sum of
Rs. 4,66,39,061/- (and against which the sum of Rs. 2,38,00,000/- deposited under
protest had been adjusted) being set aside by CESTAT on the ground of being
barred by time, are entitled to appropriate the amount of Rs. 2,38,00,000/- al-
ready deposited by the petitioner and demand with respect whereto has also
been set aside. We have further enquired, whether not the said logic treats
Rs. 2,38,00,000/- out of the total demand of Rs. 4,66,39,061/- differently from the
balance, with the respondents being entitled to recover/appropriate
GST LAW TIMES  23rd July 2020  95