2007 (2) TMI 587

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....ition precedent before the Deputy Excise and Taxation Commissioner (Appeals) Punjab. Brief facts of the case are that the petitioner firm is engaged in the manufacture of yarn. While framing assessment for the year 1992-93, the assessing authority created additional demand of Rs. 33,52,234/- while rejecting R.D. sales made to two firms, namely, Shiv Shakti Yarn and Indian Woll Agency, vide order dated 31.03.2000. As a pre-condition for entertainment of appeal against the order creating additional demand, the petitioner deposited a sum of Rs. 5,50,000/- on September 6, 2005. Ultimately, the order of assessment was set aside by the VAT Tribunal and the matter was remitted back to the assessing authority to pass fresh order in accordance....

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....der dated 11.07.2006. Filing of rectification application is already under process in this case. The dealer has made application seeking refund of Rs. 5,50,000/- and Asstt. Excise and Taxation Commissioner, Ludhiana-III, has sought withholding of refund. The matter has been considered in the light of the provisions U/s 12(6) of the Act ibid which read as under:- "Where an order allowing refund is the subject matter of an appeal or further proceedings or where any other proceedings under this act are pending and the Assessing Authority is of the opinion that the refund is likely to adversely affect the recovery, the Assessing Authority may withhold the refund and refer the case to the Commissioner whose order shall be final." ....

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....d that the respondents have no right to retain the aforementioned amount in the absence of any finding that the refund would adversely affect the recovery as per the provisions of Section 12(6) of the 1948 Act. The reliance of the respondents on the order dated 6.12.2006 (R-1), passed under Section 12(6) of the 1948 Act is wholly misplaced because the aforementioned order lacks complete application of mind and the primary requirements of Section 12(6) of the 1948 Act remains unsatisfied. The aforementioned provision is reproduced hereunder for ready reference:- "Where an order allowing refund is the subject matter of an appeal or further proceedings or where any other proceedings under this act are pending and the Assessing Authori....