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TMI Blog2018 (6) TMI 1616X X X X Extracts X X X X X X X X Extracts X X X X ..... as on 31.03.2010 can be said to be ₹ 1,70,20,866/- lakhs and therefore, the amount paid in excess of the said amount, i.e. ₹ 79.79 lakhs can be said to be paid in excess and therefore, the petitioner is entitled to the refund of the same. It is required to be noted that whatever the amount was deposited by the petitioner, in the present case for the period 16.08.2006 to 25.02.2008 was paid by the petitioner before even the petitioner was registered as a sick unit under the GBIFR as per the earlier Scheme of 12.05.2004. The said Scheme came to be withdrawn and thereafter, the petitioner applied afresh for getting the benefit under the subsequent Scheme dated 15.07.2010. Therefore, the outstanding amount as on 31.03.2010 was required to be considered. The outstanding dues were required to be considered as on 31.03.2010 which was ₹ 250 lakhs as observed hereinabove. The earlier payment of ₹ 79.79 lakhs was already earlier adjusted towards the amount of interest as per the relevant provisions of the Sales Tax Act, more particularly, Section 47(4B) of the Act. Under the circumstances, it cannot be said that the petitioner made th`e payment of ₹ 79.79 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Sales Tax Department, Bharuch, started making payment of the outstanding dues in installments from 16.08.2006 to 25.02.2008, to the tune of ₹ 79.79 lakhs, which according to the petitioner, was against the principal dues of ₹ 250 lakhs. It is the case on behalf of the petitioner that the petitioner deposited the aforesaid amount of ₹ 79.79 lakhs against the principal dues of ₹ 250 lakhs to avoid coercive action and with a bona fide belief that that installments would be set-off against the final amount determined under the Scheme. 2.3 It appears that thereafter, the Industries Department issued a Certificate dated 06.11.2008 granting Sick Unit Registration to the petitioner dated 17.10.2008 with Registration No.51 under the Government Resolution dated 12.05.2004 and the pipeline Government Resolution dated 14.03.2008. 2.4 It is the case on behalf of the petitioner that the Assistant Commissioner of Commercial Tax sent all the details pertaining to the amount paid by the petitioner towards sales tax dues along with the certified copies of the Challans to the Deputy Commissioner of Commercial Tax to reconcile the amount to be paid b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest, penal interest and penalty. 2 If sick unit makes entire payment of all the outstanding dues within 18 months of the order by the competent authority 10% Remission of entire amount of interest, penal interest and -penalty. However, a unit has to pay simple interest at nine per cent. on the outstanding principal amount payable from the date of order issued under this Scheme. 3.2 The amount of down payment payable as perthe option given by the sick unit shall be paid within one month of the order issued by the competent authority. The Down Payment is required to be made with reference to principal outstanding dues. 3.3 The unit shall pay the remaining amount (i.e. after excluding the amount of Down Payment) of principal outstanding dues along with interest payable (as per column 4 above) in equal and monthly installments commencing in the month subsequent to the month in which Down Payment is made. Such monthly installments shall be paid during the period specified in column 2 above, and the simple interest shall be charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as on 31.03.2010 as per Option-1 viz. within six months time period as per the Government Resolution dated 15.07.2010. 2.8 That as per the order dated 11.07.2014, for availing the benefit of the Government Resolution dated 15.07.2010, the petitioner was called upon to pay a total sum of ₹ 289.37 lakhs as under: Sl. No Departments Outstanding as on March 31, 2010 Amount payable (principal dues) Remission amount (interest, penal interest and penalty) 1 Commercial Tax Department 496.46 250.00 246.46 2 Electricity duty outstanding dues 82.59 39.37 43.22 Total Rs. 579.05 289.37 289.68 2.9 That as per the order dated 11.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme as a small-scale industry unit is illegal, contrary to law and the Scheme contained in the Government Resolution. 4.1 It is further submitted by Shri Tushar Hemani, learned advocate appearing on behalf of the petitioner, that pending its application before the GBIFR, on verbal instructions of the Sales Tax Officer, Bharuch, and in order to avoid coercive recovery action, the petitioner started making payment in installments on on account basis with the Sales Tax Officer, Bharuch, from 16.08.2006 to 25.02.2008 towards the Sales Tax Deferment amount and the same was credited by the Sales Tax Officer, Bharuch, accordingly. It is submitted that the said payment was made towards the principal amount. It is submitted that there is no provision under the law which entitles the respondents to adjust the payment towards interest first despite there being a specific direction in the Challan to adjust the payment towards principal. It is submitted that therefore, respondent No.2 had no authority to adjust the excess amount paid to the tune of ₹ 79.79 lakhs towards interest, more so when it was specifically conveyed by the Commissioner of Industries to respondent No.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d amount was rightly appropriated first towards the interest. 5.2 It is further submitted by Shri Chintan Dave, learned Assistant Government Pleader that even when the petitioner deposited the amount of ₹ 79.79 lakhs which according to the petitioner was deposited for the period between 16.08.2006 to 25.02.2008, the petitioner was not even declared as Sick Unit under the GBIFR. Therefore, any payment made prior thereto, i.e. prior to the registration of Sick Unit under the GBIFR was required to be dealt with and adjusted as per the provisions of the Gujarat Sales Tax Act and therefore, the amount of ₹ 79.79 lakhs paid by the petitioner have rightly not been adjusted against the principal dues. 5.3 It is further submitted by Shri Chintan Dave, learned Assistant Government Pleader that determination of the principal amount as on 31.03.2010 by the appropriate authority at ₹ 250 lakhs therefore is absolutely just and proper and as per the definition of outstanding dues contained in the Scheme. It is submitted that therefore, the petitioner shall not be entitled to refund of ₹ 79.79 lakhs, as claimed. Making above submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lectricity duty, water charges levied by State departments) and also the dues payable to GIIC, Gujarat State Financial Corporation (GSFC), GIDC, GUVNL companies under it (formerly known as GEB), GMB, GWSSB and GWIL. It is the case on behalf of the petitioner that the amount of ₹ 79.79 lakhs paid by it was required to be adjusted against the principal dues. However, the aforesaid shall be contrary to the provisions of Section 47(4B) of the Gujarat Sales Tax Act, 1969, which provides that where a dealer is liable to pay interest under sub-section (4A) and he makes payment of an amount which is less than the aggregate of the amount of tax, penalty and interest, the amount so paid shall be first applied towards the amount of interest, thereafter the balance, if any, towards the amount of penalty and thereafter the balance, if any, towards the amount of tax. In the present case, admittedly, the amount of penalty and interest was higher than the payment made, therefore, the same was first required to be adjusted towards the penalty and interest. After adjusting the same towards penalty and interest liability as per the outstanding dues defined in the Government R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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