2021 (10) TMI 687 - HC - GST

Delay of 50 days in filing the review petition - refund claim - encashment of Bank Guarantees - HELD THAT - The grounds urged by the review petitioners may be grounds of appeal but would not be grounds for review within the ambit and meaning of section 114 read with Order 47 Rule 1 of the Code of Civil Procedure, 1908. No rehearing of a concluded matter is permissible while seeking review. There are no error apparent on the face of the record nor any documents which the review petitioners could not present at the time of hearing despite due diligence. Also there are no sufficient cause to rehear the concluded matter. Present is not a fit case for review - review petition dismissed.

Summary

Issues Involved:
1. Delay in filing the review petition.
2. Encashment of bank guarantees.
3. Refund of the amount covered by the bank guarantees.
4. Compliance with statutory provisions for refund.
5. Grounds for review.

Detailed Analysis:

1. Delay in Filing the Review Petition:
The review applicants filed an interim application for condonation of delay, citing a delay of 50 days in filing the review petition. Upon hearing the learned counsel for the parties and considering the averments made in the interim application, the court condoned the delay.

2. Encashment of Bank Guarantees:
The original writ petition challenged the encashment of eight bank guarantees amounting to ?4,73,26,512.00 by the respondents. The petitioner argued that the encashment was contrary to the decision in "Mahindra and Mahindra Ltd. vs. Union of India – 59 ELT 505" and occurred despite a pending appeal to the Goods Service Tax Appellate Tribunal. The court noted that the petitioner had already deposited substantial amounts as IGST dues and pre-deposits for statutory appeals.

3. Refund of the Amount Covered by the Bank Guarantees:
The court observed that the petitioner had deposited a total of ?3,07,62,233.00, which, when added to the amount covered by the bank guarantees, totaled ?7,80,88,745.00. This amount was significantly higher than the total dues of ?4,73,26,512.00. The court directed the respondents to refund the amount of ?4,73,26,512.00 covered by the encashed bank guarantees with applicable statutory interest within four weeks. The petitioner was required to furnish fresh bank guarantees for ?1,65,64,279.00 to cover the balance amount of penalty.

4. Compliance with Statutory Provisions for Refund:
The review petitioners argued that the refund should be governed by Section 54 of the CGST Act, which requires a formal refund application. They contended that the court should have directed the petitioner to follow the due procedure laid down in law instead of invoking Article 226. The court, however, did not find this argument sufficient to alter its original judgment.

5. Grounds for Review:
The review petition was filed on several grounds, including the unconditional nature of the bank guarantees and the independent nature of the tax and penalty under Section 129 of the CGST Act. The petitioners also argued that part payments for appeals have no bearing on the unconditional bank guarantees and that the refund process should follow Section 54 of the CGST Act. The court found that these grounds may be valid for an appeal but not for a review. The court emphasized that no rehearing of a concluded matter is permissible while seeking review unless there is an error apparent on the face of the record or new evidence that could not have been presented earlier despite due diligence. The court found neither and dismissed the review petition.

Conclusion:
The High Court dismissed the review petition, emphasizing that the grounds urged were more appropriate for an appeal rather than a review. The court upheld its original judgment, which directed the respondents to refund the amount covered by the encashed bank guarantees and required the petitioner to furnish fresh bank guarantees for the balance penalty amount.