Delhi High Court - Orders
Ernst & Young Llp vs Union Of India & Ors on 21 March, 2023
Author: Vibhu Bakhru
Bench: Vibhu Bakhru
$~16
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 5989/2019
ERNST & YOUNG LLP ..... Petitioner
Through: Mr. Kamal Sawhney & Ms.
Anishka Gupta, Advs.
Versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Ravi Prakash, Mr. Farman
Ali & Mr. Aman Rewaria, Advs.
for UOI.
Mr. Aditya Singla & Mr.
Adhishwar Suri, Advs. for R-3 to 5.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
HON'BLE MS. JUSTICE MINI PUSHKARNA
ORDER
% 21.03.2023
1. The petitioner has filed the present petition, inter alia, impugning the communication dated 12.10.2018 issued by respondent no.5, whereby the petitioner's request for interest on pre-deposit for the period 15.09.2009 till 20.09.2016 was rejected. The petitioner also claims that directions be issued to the respondents to pay interest on the amount of ₹1,00,00,000/-, which was deposited by the petitioner to avail its right of appeal under Section 35FF of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994.
2. The principal controversy in the present appeal relates to whether interest is payable on the pre-deposit made by the petitioner for filing an appeal under Section 35FF of the Excise Act.
3. The petitioner is a Limited Liability Partnership (LLP) and is engaged in, inter alia, management consultancy services.
4. The petitioner had filed an appeal under Section 35F of the Central Excise Act, 1944 before the Customs Excise and Service tax Signature Not Verified Digitally Signed By:Dushyant Rawal Signing Date:23.03.2023 Appellate Tribunal (hereafter 'CESTAT') against an order passed by the Commissioner (Appeals) in respect of service tax. As a pre-condition for maintaining the said appeal, the petitioner had also deposited a sum of ₹1,00,00,000/- with the respondents.
5. The petitioner prevailed in its appeal before the learned CESTAT and its appeal was allowed by an order dated 05.06.2012. Admittedly, as a consequence of the same, the amount deposited by the petitioner for maintaining the said appeal was refundable to the petitioner.
6. It is also relevant to note that the respondents had also appealed against the decision of the CESTAT before this Court, which was dismissed as not maintainable. The Special Leave Petition (SLP) preferred against the decision of this Court rejecting the petitioner's appeal against the order dated 05.06.2012 of the CESTAT, has also been rejected.
7. It is stated that the respondent has filed an appeal against the order dated 05.06.2012 before the Supreme Court, which is pending consideration.
8. It is not disputed that the amount deposited by the petitioner for maintaining its appeal before the Tribunal is required to be refunded. There does not appear to be any dispute that the petitioner is entitled to interest on the said amount beyond the period of three months from the date of the receipt of the CESTAT's order dated 05.06.2012 [that is, 14.06.2012]. Although the petitioner's claim for refund of ₹1,00,00,000/- has been allowed and the amount has been disbursed to the petitioner; no interest on the said amount has been sanctioned or disbursed.
9. It is the respondents' case that since the petitioner is aggrieved by the order of the Adjudicating Authority limiting the refund to the amount Signature Not Verified Digitally Signed By:Dushyant Rawal Signing Date:23.03.2023 of pre-deposit, the appropriate remedy for the petitioner is to file an appeal against the said order. It is also emphasized that the Adjudicating Authority would now have no powers to review its own orders and therefore, it does not have jurisdiction to entertain the petitioner's request for reconsidering payment of interest.
10. Notwithstanding the petitioner may have a right to appeal against the order refunding the principal amount while ignoring the interest thereon; we do not consider it necessary to relegate the petitioner to avail such remedy considering that there is no dispute that the petitioner would be entitled to interest on the said amount.
11. According to the petitioner a sum of ₹24,50,959/- is due and payable to the petitioner on account of interest on the pre-deposit.
12. In view of the above, we consider it apposite to set aside the communication issued by respondent rejecting the petitioner's request for interest and direct the Adjudicating Authority to entertain its request for interest on the pre-deposit amount on merits and disburse the said amount as calculated.
13. The petition is allowed in the aforesaid terms.
VIBHU BAKHRU, J MINI PUSHKARNA, J MARCH 21, 2023 'gsr' Signature Not Verified Digitally Signed By:Dushyant Rawal Signing Date:23.03.2023