2023 (3) TMI 582

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....llant and having also perused the affidavit filed in support of the application, we are satisfied with the reasons given, we condone the delay in filing the appeal. Accordingly, the application being IA No.CAN 1 of 2022 is disposed of. In Re : FMA 1280 of 2022 2. This intra-Court appeal at the instance of Revenue is-directed against the order dated 28th July, 2022 passed in WPA-15602 of 2022. The respondents had filed the said writ-petition seeking for a direction upon the appellants to-consider the claim of refund, which they made in their-representation dated 28th March, 2022. The case of the-respondents/writ petitioners was that even before the order of-adjudication could be served, by way of attachment a sum of-Rs.29,14,853/- f....

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....g their appeal before the Tribunal had effected a-pre-deposit of 10% of the Service Tax liability. 4. The learned Writ Court at the admission stage has allowed-the writ petition directing that only 10% of the demand could--have been retained and balance amount ought to be refunded.-The learned Writ Court has noted decisions, which were relied-on by the respondents as also the circular issued by the-Central Board of Excise & Customs dated 10th March, 2017. The-Revenue being aggrieved by such order is before us by way of-appeal. 5. We have heard the learned counsels for the parties at-length. 6. The first hurdle that the respondents have to cross is to-whether they could have approached this Court by filing a writ-petition when admit....

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....de before the Tribunal and not by way of writ petition.-More importantly, the prayer sought for in the writ petition-is to consider the representation whereas the direction issued-is a positive direction to effect refund which was-impermissible for the writ Court to do. 10. Therefore, for the above reasons the appeal filed by the-Revenue is allowed and order passed by the learned writ Court-is set aside. Consequently, the writ petition stands-dismissed. 11. We grant liberty to the appellant to file a miscellaneous-application before the Tribunal seeking for appropriate relief-before the learned Tribunal. 12. The learned advocate for the respondents submitted that-as of now the Tribunal at Kolkata does not have the required-quorum. ....