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TMI Blog2015 (5) TMI 946X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeals against its decision in the case of ONGC Limited are pending before this Court and this Court is seized with the matter, even to avoid any further multiplicity of proceedings, the learned Tribunal could not have insisted for disposing of the appeals by the first appellate authority following its earlier decision in the case of ONGC Limited, which are the subject matter of appeals before this Court and that too within stipulated period - respondent - original appellant has stated at bar that he has no objection, if that part of the order, by which the learned Tribunal has directed the first appellate authority to decide the appeals within three months and that too after following the decision of the Tribunal in the case of ONGC Limited is quashed and set aside. If the respondent - original appellant is permitted to withdraw the amount, which the respondent - original appellant deposited pursuant to the interim order dated 25.6.2013 passed by the learned Tribunal in First Appeal Nos.11 and 12 of 2013 i.e. ₹ 18,69,75,730/- on furnishing unconditional and irrevocable Bank Guarantee of the like amount in the name of the Commissioner of Commercial Tax, it will make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessed at ₹ 68,23,43,962/-, which inter alia, includes tax amount of ₹ 39,67,72,238/- and the interest of ₹ 28,56,32,356/-. Feeling aggrieved by and dissatisfied with assessment orders passed by the Assessing Officer under the VAT Act as well as CST Act, the respondent - dealer - M/s Essar Oil Limited, preferred two appeals before the first appellate authority - Joint Commissioner of Commercial Tax. That the first appellate authority passed an order directing the respondent herein - original appellant - dealer to deposit 20% of the tax demands and furnish guarantee for the remaining demands raised as a result of the assessment orders passed by the Assessing Officer, as pre-deposit and before the appeals are considered on merits. That feeling aggrieved by and dissatisfied with the order passed by the first appellate authority of pre-deposit directing the respondent - original appellant to deposit 20% of the tax demands and furnish Bank Guarantee for the remaining demands raised as a result of the assessment orders, the respondent dealer - original appellant preferred appeals being First Appeal Nos.11 and 12 of 2013 before the learned Tribunal. That the aforesaid a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority of pre-deposit only, the learned Tribunal without considering the legality and validity of the order of the first appellate authority of pre-deposit, allowed the aforesaid appeals and quashed and set aside the order passed by the first appellate authority directing the respondent - original appellant to make payment of 20% of the total demand as pre-deposit and remanded the matter to the first appellate authority with the direction to decide the first appeals pending before him keeping in mind the decision of the Tribunal in the case of ONGC Limited and/or in accordance with law within three months from the date of receipt of the said order. The learned Tribunal further passed an order that if the learned Joint Commissioner of Commercial Tax fails to decide the appeals within a period of three months from the date of receipt of the said order, in that case, the amount paid by the respondent - original appellant as a result of the interim order passed by the learned Tribunal on 25.6.2013 shall be refunded to the original appellant - respondent herein forthwith. The learned Tribunal also clarified that the respondent - original appellant shall not be required to furnish the ren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed in First Appeal Nos.11 and 12 of 2013 as well as order passed by the learned Tribunal dated 20.2.2015 passed in Misc. Application Nos.33 and 34 of 2015, the State through Commissioner of Commercial Tax preferred present tax appeals as well as Special Civil Applications. 4. Shri PK Jani, learned Additional Advocate General appearing with Mrs. Manisha Lavkumar, learned GP has vehemently submitted that the impugned judgment and order passed by the learned Tribunal passed in First Appeal Nos.11 and 12 of 2013 as well as Misc. Application Nos.33 and 34 of 2015 insofar as directing the first appellate authority to decide the appeals pending before him within a period of three months and to follow the judgment of the learned Tribunal in the case of ONGC Limited is not justified in the facts and circumstances of the case, more particularly, when the appeals against the decision of the learned Tribunal in the case of ONGC Limited are admitted and pending before this Court and this Court is seized with the matter. 4.1 It is submitted that pendency of the appeals against the decision of the Tribunal in the case of ONGC Limited before this Court was pointed out to the learned Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned Tribunal could have passed the order that the amount already deposited by the respondent herein - original appellant would be continued to be retained by the State, however, subject to the ultimate outcome of the decision by the first appellate authority on merits and that too after the decision of this Court in the case of ONGC Limited. It is submitted that the total tax liability pursuant to the assessment orders against the respondent herein - original appellant under the VAT Act and CST Act is ₹ 591,67,61,310/- and 68,23,43,962/- respectively. It is submitted that against which, as such, pursuant to the earlier interim order passed by the learned Tribunal, the respondent - dealer had deposited only ₹ 18,69,75,730/- and with respect to that also, the learned Tribunal has passed an order directing the appellant to refund the said amount to the respondent. 4.4 It is further submitted by Shri PK Jani, learned Additional Advocate General that even otherwise, the directions issued by the learned Tribunal in Misc. Application Nos.33 and 34 of 2015, which in fact, the appellant State preferred to modify the judgment and order dated 26.8.2014 passed in First Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... objection if the order passed by the learned Tribunal dated 20.2.2015 passed in Misc. Application Nos.33 and 34 of 2015, by which the learned Tribunal has directed the appellant to refund/return the amount, which the respondent - original appellant deposited pursuant to the interim order dated 25.6.2013 passed by the learned Tribunal in First Appeal Nos.11 and 12 of 2013 with interest at the rate of 18% per annum, is set aside and/or the impugned order passed by the learned Tribunal dated 20.2.2015 passed in Misc. Application Nos.33 and 34 of 2015 is quashed and set aside. 6. Shri PK Jani, learned Additional Advocate General, as such, has insisted to quash and set aside the order passed by the learned Tribunal, by which the appellant is directed to return the amount, which the respondent - original appellant deposited pursuant to the interim order dated 25.6.2013 passed by the learned Tribunal in First Appeal Nos.11 and 12 of 2013, however ultimately, he has left it to the Court with a request to strike the balance and protect the interest of the revenue also. 7. Heard learned advocates appearing on behalf of the respective parties. 7.1 At the outset, it is required to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear that on payment of ₹ 5 crore and furnishing Bank Guarantee of 5% of the tax demand as indicated above, the bank attachment on the above referred bank accounts of the appellant is directed to be lifted immediately and stay would come into operation against recovery of the outstanding demand against the appellant. 5) It is further made clear that if the appellant commits any default in making compliance with the aforesaid conditions, stay granted as above shall stand vacated and it would be open for the department to reimpose the bank attachment on the bank accounts of the appellant. 6) It is also made clear that all the observations made hereinabove are prima facie in nature and the same may not have any bearing on the appeals of the appellant which are pending before the first appellate authority or on any other appeals pending before this Tribunal, involving identical issues. 7.3 Subject to the aforesaid directions and observations, the learned Tribunal disposed of the stay applications. That the respondent herein - original appellant deposited ₹ 18,69,75,730/- pursuant to the aforesaid directions. That thereafter, the aforesaid appeals came up for hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iterated again and directed the first appellate authority to decide the appeals within stipulated time after following its decision in the case of ONGC Limited. Not only that, but in the said Misc. Applications preferred by the State, the learned Tribunal by impugned order dated 20.2.2015 has directed the State to refund/return the amount of ₹ 18,69,75,730/- within a period of 15 days with applicable rate of interest, failing which, to refund the aforesaid amount with 18% interest. 7.4 When it was also brought to the notice of the learned Tribunal that its decision in the case of ONGC Limited is subject matter of appeals before the High Court and the High Court has admitted the appeals on substantial question of law and are pending final disposal and the High Court is seized with the matter, we fail to appreciate the anxiety on the part of the learned Tribunal to dispose of the appeals by the first appellate authority following its earlier in the case of ONGC Limited. Once it was brought to the notice of the learned Tribunal that the appeals against its decision in the case of ONGC Limited are pending before this Court and this Court is seized with the matter, even to avoi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t part of the order, by which the learned Tribunal has directed the first appellate authority to decide the appeals within three months and that too after following the decision of the Tribunal in the case of ONGC Limited is quashed and set aside. 7.5 In the Misc. Applications preferred by the appellant State, the learned Tribunal has directed the appellant State to refund/return the amount deposited by the respondent - original appellant pursuant to the interim order/direction dated 25.6.2013 passed in First Appeal Nos.11 and 12 of 2013 with interest at the rate of 18% per annum. The aforesaid order/ direction is absolutely beyond the scope and ambit of the powers of the learned Tribunal. Even, such a direction could not have been issued by the learned Tribunal in the Misc. Applications preferred by the State. As recorded herein above, Shri Soparkar, learned senior counsel appearing on behalf of the respondent - original appellant has also stated at the bar, under the instructions, that even he/respondent has no objection if the direction issued by the learned Tribunal directing the appellant to return/ refund the amount, which the respondent - original appellant deposited with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent - original appellant pursuant to the interim order/direction dated 25.6.2013 passed in First Appeal Nos.11 and 12 of 2013) are hereby quashed and set aside. The impugned order passed by the learned Tribunal directing the respondent - original appellant to return/refund the amount of ₹ 18,69,75,730/- (the amount deposited by the respondent - original appellant pursuant to the interim order/direction dated 25.6.2013 passed in First Appeal Nos.11 and 12 of 2013) is hereby modified to the extent that it is directed that on furnishing unconditional and irrevocable Bank Guarantee of like amount i.e. ₹ 18,69,75,730/- in favour of the Commissioner of Commercial Tax if furnished within 15 days from today (as agreed by Shri Soparkar, learned senior counsel appearing on behalf of the respondent - original appellant), the appellant State shall return the said amount i.e. ₹ 18,69,75,730/- to the respondent forthwith. However, the aforesaid shall be without prejudice to the rights and contentions of the respective parties in the appeals pending before the first appellate authority. As on the similar/identical issues, the appeals in the case of ONGC Limited are pen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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