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TMI Blog2025 (1) TMI 1251X X X X Extracts X X X X X X X X Extracts X X X X ..... nt returns under Section 20 (1) r/w. Section 50 of the MVAT Act, 2002 - correctness in directing Assessing Authority to process application of refund when it was neither filed as per law nor within limitation - applicability of decision in Mahalaxmi Cotton and Ginning Pressing and Oil Industries v/s. The State of Maharashtra [2012 (5) TMI 152 - BOMBAY HIGH COURT] - limitation with respect to claim of refund ought to be considered in view of the provisions of u/s. 23 of the MVAT Act or not. HELD THAT:- The Appellant/Assessee before the Tribunal, being a dealer registered under the MVAT Act, had filed returns for the period 2010-2011 showing a refund of Rs. 4,56,216/-. However, the said refund was not granted to the Assessee. Hence, a letter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive for the Department to scrutinize the returns and process any due refund within six months.
Appeal disposed off. X X X X Extracts X X X X X X X X Extracts X X X X ..... ng a refund of Rs. 4,56,216/-. However, the said refund was not granted to the Assessee. Hence, a letter was written to the Nodal Officer. The Commissioner of State Tax (D-901), Nodal Division-5, vide Order dated 19th May, 2018, rejected the Assessee's request for refund on the ground that the Assessee had failed to apply for grant of refund within the prescribed time. It was mentioned that the application for refund in respect of Assessment Year 2010-2011 was time barred under the provisions of Section 23 of the MVAT Act. 4. Being aggrieved by the rejection order, the Assessee preferred First Appeal before the Dy. Commissioner of State Tax (Appeal) E-905, Nodal Division-5, Mumbai. The learned Deputy Commissioner (Appeals), vide an Order d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rant an early refund; and (b) obtaining refund as per the order of assessment. 7. The Tribunal (in M/s. Om Shree Developers), after relying upon the decision of this Court in the case of Vichare and Co. Pvt. Ltd., v/s. State of Maharashtra & Others (2015) SCC Online Bom 3954, came to the conclusion that the Department had misconstrued the legal provisions and the right to get a refund under Section 51 (1) to (7) of the Act. The Tribunal held that if the dealer has paid an excess amount than what it is liable to pay, then the excess is not the property of the Department, or of the Government, but it is the property of the dealer, who is entitled to get a refund after scrutiny of the returns. In these circumstances, the Tribunal (in M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 42 (S.C.). It has been held in all these cases that if no appeal is filed against an earlier order or the earlier appeal involving the identical issue was not pressed by the Revenue, the Revenue is not entitled to press the other appeals involving the same question. In Birla Corporation Ltd., (supra),this Court observed as follows:- "In the instant case, the same question arises for consideration and the facts are almost identical. We cannot permit the Revenue to take a different stand in this case. The earlier appeal involving identical issue was not pressed and was, therefore, dismissed. The respondent having taken a conscious decision to accept the principles laid down in Pepsico India Holdings Ltd. [2001 (130) E.L.T. 193] cannot be p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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