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TMI Blog2024 (9) TMI 572X X X X Extracts X X X X X X X X Extracts X X X X ..... ur Singh, For the Respondents Through: Mr. Aditya Singla, SSC with Mr. Raghav Bakshi, Adv. for R-1, 3, 4 5. ORDER PER 1. These two writ petitions have been preferred seeking directions commanding the respondents to release amounts of INR 1,50,00,000/- to the petitioners consequent to the closure of proceedings initiated under the Customs Act, 1962 in terms of the Orders-in-Original dated 22 June 2020 and 28 August 2020, respectively. 2. It is the case of the writ petitioners that the aforesaid deposits were made during the course of investigation which came to be initiated pursuant to a seizure of goods on 06 February 2015 in W.P.(C) 11582/2022 and a similar seizure of goods on 06 February 2015 in case of W.P.(C) 11584/2022. The petitioners allege that although the seizure was wholly arbitrary and unwarranted in the facts which obtained, they were forced to make the payments aforenoted, since various other live shipping bills of export were also awaiting clearance. In both cases, Show Cause Notices came to be issued and ultimately ended in Orders-in-Original being passed as noted hereinabove. 3. Despite the closure of proceedings in favour of the writ petitioners, they were constra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Learned Additional Solicitor General submits that as per the order passed by the adjudicating officer as well as the appellate authority, certificate of the Chartered Accountant was not filed. The said observations are factually incorrect because in the grounds of appeal preferred before the first appellate authority the respondent had referred to certificate dated 18th January, 2006 of M/s. Obhrai Kataria and Associates, Chartered Accountants. Along with the certificate they had also filed copy of the balance sheet that tax of Rs. 5 crores had not been passed on to the buyers and, therefore, the principle of unjust enrichment was not applicable. The factual finding of the Tribunal is correct. 7. What we seek to emphasize is that deposits made under protest and during the course of investigation as also those which may come to be created pursuant to statutory obligations laid in place cannot partake the character of tax or duty. 8. The fate of deposits made during the course of investigation, under protest and the liability of the respondents to refund was considered in some detail by our Court in Team HR Services Pvt. Ltd. V. Union of India 2020 SCC OnLine Del 2602 and where it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AT, was not refundable. 7. The purport of the aforesaid order of the respondents declining refund 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/-. xxxx xxxx xxxx 11. Though there is no clarity of the circumstances under which the petitioner deposited the said sum of Rs. 2,38,00,000/- during audit/investigation but the undisputed position remains that the deposit was under protest and against anticipated liability and which liability though fructified by the respondents was set aside by the CESTAT and which order has attained finality. It is not the case of the respondents that the said deposit was voluntary or by way of self-assessment and which has been accepted by the respondents and in which case th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss hours, that is, up to 00: 30 a.m. on 21.10.2021. It is not in doubt that a tax payer can voluntarily pay tax prior to issuance of the Show Cause Notice in terms of Section 73(5) of the Act. In terms of Section 73(6) of the Act, in case a person chargeable with tax before service of notice under Section 73(1) or before giving any statement under Section 73(3) of the Act, makes a voluntary payment of tax with interest, the proper Officer is not to serve any notice in respect of tax so paid or any penalty payable under the provisions of the Act or the CGST Rules made thereunder. The provision is clearly for the benefit of the taxpayer who voluntarily pays tax prior to issuance of any Show Cause Notice and, thus, absolves himself of any liability to pay the penalty. These provisions do not empower the Department to compel the taxpayer to pay any tax. 30. However, if the taxpayer, after such payment, turns around and claims that the payment had not been made voluntarily and the circumstances, as mentioned above, also point out towards the same, it must be accepted that the payments were not made voluntarily. The taxpayer, in such circumstances, will forfeit the immunity which he is e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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