TaxTMI 
TaxTMI 
2015 (5) TMI 946
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....ibunal dated 20.2.2015 passed in Misc. Applications Nos.33 and 34 of 2015 in First Appeal Nos.11 and 12 of 2013, the State of Gujarat through Commissioner of Commercial Tax has preferred the present tax appeals as well as Special Civil Applications. 3. The facts leading to the present tax appeals and the Special Civil Applications in nutshell are as under: 3.1 That the Deputy Commissioner of Commercial Tax Petroleum 1, Gujarat State (assessing authority) passed assessment orders for the year 2008-09 under the Gujarat Valued Added Tax Act (for short "the VAT Act") as well as under the Central Sales Tax Act (for short "the CST Act"). As per the assessment order passed against the respondent - M/s Essar Oil Limited under the VAT Act, the respondent is liable to pay Rs. 591,67,61,310/-, which inter alia includes the tax amount of Rs. 334,28,0,3000/-, interest of Rs. 240,68,18,160/- and the penalty of Rs. 16,71,40,150/-. It appears that the amount of Rs. 2,11,121/- was recovered through the bank attachment and therefore, the total due outstanding against the respondent - dealer was Rs. 591,65,50,189/- under the VAT Act. The tax liability under the CST Act of the respondent for the afo....
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.... stay granted as above shall stand vacated and it would be open for the department to reimpose the bank attachment on the bank accounts of the appellant. 6) It is also made clear that all the observations made hereinabove are prima facie in nature and the same may not have any bearing on the appeals of the appellant which are pending before the first appellate authority or on any other appeals pending before this Tribunal, involving identical issues." 3.2 It appears that pursuant to the aforesaid interim order dated 25.6.2013 and in compliance thereof, the respondent - dealer - original appellant deposited Rs. 18,69,75,730/- and also furnished the Bank Guarantee of 5% of the tax demand. That on that, the stay against the recovery of the balance amount came to be granted and continued. That thereafter, the aforesaid two appeals came up for hearing before the learned Tribunal. That in the meantime, in another case, in the case of ONGC Limited, the learned Tribunal had an occasion to consider the similar issue and held against the revenue. Therefore, though the tax appeals before the learned Tribunal were against the orders passed by the first appellate authority of pre-deposit only....
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....d out that the decision of the learned Tribunal in the case of ONGC Limited is the subject matter of appeals before this Court and the said tax appeals are admitted and this Court is seized with the matters. Despite the above, by order dated 20.2.2015, the learned Tribunal not only dismissed the said applications but even refused to modify its earlier order, by which, the first appellate authority was directed to decide the first appeals within three months and to consider the decision of the Tribunal in the case of ONGC Limited, which is the subject matter of appeals before this Court. The learned Tribunal in the applications filed by the State had directed the State to refund the amount, which the respondent - original appellant deposited pursuant to the interim order dated 25.6.2013 passed by the learned Tribunal in First Appeal Nos.11 and 12 of 2013, within 15 days from 20.2.2015, faling which the State to refund the aforesaid amount i.e. Rs. 18,69,75,730/- with interest at the rate of 18% per annum on such overdue payment of refund. 3.4 Feeling aggrieved by and dissatisfied with judgment and order passed by the learned Tribunal dated 26.8.2014 passed in First Appeal Nos.11 an....
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.... case of ONGC Limited, the learned Tribunal dismissed the appeal, in that case, the State would be required to prefer appeals before this Court. Instead of that, if the appeals are kept pending before the learned first appellate authority waiting for the decision of this Court in the case of ONGC Limited, that would have been proper order under procedure, more particularly, when if such a course is adopted, the respondent - original appellant - dealer was not to be prejudiced as there was already stay against recovery in favour of the assessee/dealer continued by the learned Tribunal. 4.3 It is further submitted by Shri Jani, learned Additional Advocate General appearing for the State that even otherwise, the learned Tribunal has materially erred in directing the State to refund the amount, which the respondent - original appellant deposited pursuant to the interim order dated 25.6.2013 passed by the learned Tribunal in First Appeal Nos.11 and 12 of 2013. It is submitted that when the issue was at large before this Court, instead of directing the appellant State to refund the amount deposited by the respondent herein - original appellant, the learned Tribunal could have passed the....
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....ed 20.2.2015 passed in Misc. Applications Nos.33 and 34 of 2015 directing the first appellate authority to decide the appeals within three months after following the decision of the learned Tribunal in the case of ONGC Limited is quashed and set aside. 5.2 He has also stated at bar, under the instructions, that the respondent - dealer - original appellant is ready and willing to furnish the unconditional and irrevocable Bank Guarantee for Rs. 18,69,75,730/- in the name of the Commissioner of Commercial Tax within a period of seven days from today and on furnishing Bank Guarantee for an amount of Rs. 18,69,75,730/- and the State may be directed to refund the amount, which the respondent - original appellant deposited pursuant to the interim order dated 25.6.2013 passed by the learned Tribunal in First Appeal Nos.11 and 12 of 2013. It is submitted that therefore, to the aforesaid extent, the judgment and order passed by the learned Tribunal dated 26.8.2014 in Tax Appeal Nos.11 and 12 of 2013 may be modified. He has also stated at the bar under the instructions that the respondent - dealer - original appellant has no objection if the order passed by the learned Tribunal dated 20.2.20....
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....iginal appellant to deposit 20% of the total amount due and payable. It is required to be noted that total amount due and payable by the respondent - original appellant as per the original assessment 2008-09 i.e. Rs. 591,67,61,310/- and 68,23,43,962/-, the first appellate authority passed an order to deposit 20% of the aforesaid as pre-deposit. Against which, the respondent preferred aforesaid two appeals before the learned Tribunal. By interim order dated 25.6.2013, the learned Tribunal passed the following order: "1) The appellant is directed to pay Rs. 5 crores to the Department forthwith. 3) The appellant is further directed to furnish the Bank Guarantee of 5% of the total tax demand (exclusive of interest and/or penalty) both under the Gujarat VAT Act as well as under the CST Act immediately. 3) The appellant is further directed to pay 5% of the amount, of total tax demand (exclusive of interest and/or penalty), both under the Gujarat VAT Act as well as CST Act as reduced by Rs. 5 crore, if so paid earlier as per condition no.1 within one and half month from today. 4) It is made clear that on payment of Rs. 5 crore and furnishing Bank Guarantee of 5% of the tax demand as i....
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.... aforesaid First Appeal Nos.11 and 12 of 2013 requesting the learned Tribunal to recall the judgment and order dated 26.8.2014 passed by the learned Tribunal in First Appeal Nos.11 and 12 of 2013 or to modify the said judgment and order in such a manner that it does not impose any outer limit for deciding the first appeals pending before the first appellate authority. By filing the aforesaid applications, the appellant - State of Gujarat brought it to the notice of the learned Tribunal that the decision of the learned Tribunal in the case of ONGC (supra) is challenged before the High Court and the High Court has admitted the appeals and the appeals are pending for final disposal and therefore, the High Court is seized with the matter. Despite the aforesaid brought to the notice of the learned Tribunal, the learned Tribunal not only dismissed the said applications by not removing the outer time limit fixed by it directing the first appellate authority to decide the appeals within a period of three months after following its earlier decision in the case of ONGC Limited, reiterated again and directed the first appellate authority to decide the appeals within stipulated time after foll....
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....e authority to decide the appeals within three months and that too after following the decision of the Tribunal in the case of ONGC Limited and in accordance with law. At this stage, it is required to be noted that as such, if the outer limit to decide the appeals by the first appellate authority would have been deleted, the respondent - original appellant was not to suffer, as such as, the learned Tribunal had already continued/granted stay against the recovery of the demand during the pendency and final disposal of the first appeals by the first appellate authority. Under the circumstances, the judgment and order passed by the learned Tribunal directing the first appellate authority to decide the appeals before it within a period of three months and that too after following the decision of the Tribunal in the case of ONGC Limited deserves to be quashed and set aside. At this stage, it is required to be noted that even Shri Soparkar, learned senior counsel appearing on behalf of the respondent - original appellant has stated at bar that he has no objection, if that part of the order, by which the learned Tribunal has directed the first appellate authority to decide the appeals wit....
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....shing unconditional and irrevocable Bank Guarantee of the like amount in the name of the Commissioner of Commercial Tax, it will make the ends of justice and it will protect the interest of both the parties. 8. In view of above and for the reasons stated above, both tax appeals as well as Special Civil Applications are partly allowed. The impugned judgment and order passed by the learned learned Tribunal dated 26.8.2014 passed in First Appeal Nos.11 and 12 of 2013 as well as common order passed by the learned Tribunal dated 20.2.2015 passed in Misc. Applications Nos.33 and 34 of 2015 in First Appeal Nos.11 and 12 of 2013 insofar as directing the first appellate authority to decide the appeals pending before it within a period of three months and to follow the judgment of the Tribunal in the case of ONGC Limited as well as the direction issued by the learned Tribunal in the order dated 20.2.2015 in Misc. Applications No.33 and 34 of 2015 directing the respondent - original appellant to refund the amount of Rs. 18,69,75,730/- (the amount deposited by the respondent - original appellant pursuant to the interim order/direction dated 25.6.2013 passed in First Appeal Nos.11 and 12 of 20....