TaxTMI 
TaxTMI 
2022 (4) TMI 1209
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....ng into computer accessory business. The Petitioners have challenged service tax demand of Rs. 1,81,84,526/- in appeal before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), which was came to be allowed vide order dated 09th December, 2016. In consequence, the demand raised by the Tax Department was set aside. In turn the Tax Department has fled Civil Appeal Nos. 1644-1645 / 2018 before the Hon'ble Supreme Court challenging the order of CESTAT. 4. It is the Petitioners' contention that, in the meantime, Central Board of Indirect Taxes & Customs has issued instructions (the CBIC Instructions) dated 22nd August, 2019 raising the monetary limit for fling appeals by the Tax Department before different forums. The monetary limit for fling appeal before the Supreme Court was raised from Rs. 1 crore to Rs. 2 crores. By way of CBIC instructions dated 22nd August, 2019, it was informed to all concerns that appeal shall not be fled in the Supreme Court, involving the amount below Rs. 2 crores. Inasmuch as it was instructed that these instructions would apply to the pending cases (appeals) pertaining to the matters relating to Central Excise and Service Tax. The amount invol....
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....irtue of Article 265 of the Constitution of India, Petitioners are entitled for refund of the amount. 8. The Respondents resisted the petition by fling short affidavit-in-reply dated 27th September, 2021 of the Principal Commissioner CGST and Central Excise, Mumbai. It was the Respondents' stand that on the date of the Petitioners' fling of the application (declaration) under the scheme, the Tax Department's appeal was pending before the Supreme Court, therefore the action of accepting declaration was in accordance with law. Moreover, it is contended that Petitioners' have suo moto fled declaration to avail benefit of the scheme and as the appeal was pending, it was processed. Besides that, it is contended that by virtue of Section 130 (1) (b) of the Finance Act, 2019, any amount paid under the scheme, shall not be refunded under any circumstances. According to the Respondents, the scheme under which the amount was deposited does not contain a provision for refund, therefore the Petitioners are not entitled to claim the refund. 9. For smooth implementation of the scheme, Rules were framed namely the Sabka Vishwas (Legacy Dispute Resolution) Scheme Rules, 2019. Rule 6 of the afore....
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....the Petitioners' declaration as the appeal was to be withdrawn. 12. Our attention has been drawn by the Petitioners' learned Counsel to the decision of the Supreme Court in the case of Kusheshwar Prasad Singh V/s. State of Bihar and Others (2007) 11 SCC 447 where the Court emphasized that one cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. Meaning thereby a wrong door ought not to be permitted to make profit out of his own wrong. Undisputedly, as per the follow-up instructions, the Tax Department was to withdraw the pending appeal and in that case nothing payable or due would remain on the part of the Petitioners. However, as the Tax Department has delayed in withdrawal of appeal, they cannot take disadvantage of their own wrong. Technically on receipt of CBIC instructions dated 22nd August 2019 and follow-up instructions dated 14th October, 2019, the life of pending appeal has come to end. Therefore, it is wholely unjustifable for the Tax Department to still raise the demand by issuing SVLDRS Form No. 3 directing the Petitioners to deposit the amount. Therefore, it is not possible to accept the stand taken by the R....
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....ction of amount which is hit by Article 265 of the Constitution of India. 16. The Petitioners came with the specific case that they were unaware about the CBIC instructions directing the department to withdraw the pending appeals below specified sum i.e. 2 crores. In that case there was no reason for the Petitioners to file declaration under the scheme in bid to settle the matter by availing the benefit of the scheme. However we may reiterate that by virtue of CBIC instructions, the pending appeal does not survive, therefore, no question remained for availing benefit of the scheme. The department cannot take disadvantage of the wrong impression or mistaken action of the assessee in bonafidely applying under the beneficial scheme. The Petitioner on a erroneous impression that he would get the benefit of the scheme, is certainly entitled to have a refund of amount as the department is not entitled to retain such amount since it was their own decision to withdraw the pending appeal. 17. The amount which is claimed cannot be termed as "amount in arrears" within the meaning of Section 121(c) of the Finance Act. For ready reference, the relevant provision of the Finance Act is reproduc....
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.... meaning of Section 72 of the Indian Contract Act, which is based on equitable principles. 20. The Respondents' learned Counsel has also disputed the maintainability of Writ Petition by placing reliance on some decisions, however, having regard to the issue involved, we do not find it relevant. The Supreme Court in its celebrated decision in the case of Whirpool Corporation V/s. Registrar of Trade Marks, Mumbai and Others (1998) 8 SCC 1 has crystallized the position by expressing that where the order or the proceedings are wholely without jurisdiction the writ is well maintainable. The action of the Tax Department is wholey without authority of law as hereinbefore stated. Moreover the Respondents have not pointed any alternate remedy for the redressal of the Petitioners to seek refund. In such case certainly writ jurisdiction under Article 226 of the Constitution of India can be invoked to subserve the interest of justice by setting right the things. Moreover in the above referred case of New India Industries Ltd. and Another V/s. Union of India and Another, it is ruled that, a remedy under Article 226 of the Constitution of India would lie for enforcing the obligation of the Stat....