2015 (5) TMI 914

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....9;) read with Section 38 of the Haryana Value Added Tax Act, 2003 (for short, the 'VAT Act'), during the pendency of the appeal before the Haryana Tax Tribunal, which is not functional at present. An additional prayer has also been made to refund the amount of tax and interest to the tune of Rs. 1,46,00,000/-, which has been recovered by encashing the bank guarantee in terms of Section 35(5) of the VAT Act, without any intimation to the petitioner. 2. Counsel for the petitioner has vehemently submitted that the first appeal of the petitioner was dismissed on 19.11.2014 (Annexure P3) by the First Appellate Authority, namely, the Joint Excise & Taxation Commissioner and the order was supplied on 24.11.2014. The bank guarantee which....

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....r Section 38 read with Section 9(2) of the CST Act, totalling to the tune of Rs. 3,66,33,535/-. 5. The petitioner preferred an appeal before the First Appellate Authority, which asked for furnishing bank guarantee for the tax and interest element and eventually, the appeal was dismissed on 19.11.2014, in pursuance to which, the bank guarantee was encashed on 24.11.2014, against which, the petitioner is, now, aggrieved for not been given prior intimation before encashing. 6. A perusal of the written statement, filed by the State, would go on to show that the bank guarantee was expiring on 29.11.2014 and in the absence of any stay, the same was got encashed on account of only a period of 4-5 days remaining with the respondents to take a....

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....fter, the amount should be refunded to him and it was wrongly encashed, without giving him prior notice. 8. In such circumstances, we are not inclined to grant any relief for the refund of the amount, during the pendency of the appeal. In case the petitioner is successful, he will be entitled to the said amount which the State has encashed. Needless to say anything said herein is only for the purpose of deciding the present writ petition and the appeal of the petitioner will be decided on its own merits. 9. The only issue, thus, remains is that in pursuance of notices issued (Annexure P5), whether the balance penalty amount is liable to be recovered during the pendency of the appeal before the Tribunal, which is, at present, nonfuncti....