Delhi High Court - Orders
Alex Tour And Travel Private Limited vs Deputy Commissioner Cgst Uttam Nagar ... on 22 November, 2023
Author: Vibhu Bakhru
Bench: Vibhu Bakhru
$~19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 12739/2023
ALEX TOUR AND TRAVEL PRIVATE LIMITED..... Petitioner
Through: Mr. Kunal Kapoor, Adv.
Versus
DEPUTY COMMISSIONER CGST UTTAM
NAGAR DIVISION ..... Respondent
Through: Mr. Anurag Ojha, Adv.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
HON'BLE MR. JUSTICE AMIT MAHAJAN
ORDER
% 22.11.2023
1. The petitioner has filed the present petition impugning an order dated 13.07.2023 passed by the respondent whereby the petitioner's application for refund was allowed in part.
2. The petitioner had made an application dated 14.04.2021 for refund of unutilised Input Tax Credit (ITC) for the tax period 2019-20, amounting to ₹2,15,63,451/-. Prior to that, petitioner had also filed a similar application dated 13.04.2021 claiming refund of unutilised ITC amounting to ₹46,38,276/- for the financial year 2018-19.
3. The refund claims made by the petitioner were rejected by the Adjudicating Authority on the ground that the services rendered by the petitioner was as an intermediary and did not qualify for export of services. In addition, the Adjudicating Authority also faulted the petitioner for not filing the Foreign Inward Remittance Certificates (FIRCs) in the requisite format. Apparently, the petitioner had filed a consolidated FIRC, and the Adjudicating Authority was of the view that the same was not in the correct format.
This is a digitally signed order.
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4. The petitioner appealed against the orders passed by the Adjudicating Authority and prevailed in the appeal (Order-in-Appeal dated 28.07.2022). The Appellate Authority accepted the petitioner's contention that, in case of voluminous transactions of export of services to customers outside India, transaction wise FIRCs is not feasible. It was held that the FIRC issued from bank in any form is conclusive evidence of the fact that the appellant has received the foreign currency. The issuance of consolidated FIRC by the banker cannot be a ground for rejection of refund claim. The Appellate Authority, thus, accepted the claim of the petitioner for the refund.
5. Since the petitioner had prevailed before the Appellate Authority, the petitioner filed separate applications for refund along with interest. The same were also not processed. The Adjudicating Authority issued show cause notices as well as deficiency memos. According to the petitioner, there was no scope for issuing any further deficiency memos or show cause notices as the petitioner had prevailed before the Appellate Authority. The grounds on which its applications were rejected had been set aside and the Adjudicating Authority was required to disburse the refund as claimed.
6. However, petitioner's claims were not processed on the ground that the respondent intended to appeal the decision of the Appellate Authority.
7. In view of the above, the petitioner was constrained to file a writ petition [W.P.(C) No.5722/2023 captioned Alex Tour & Travel Pvt. Ltd. v. Assistant Commissioner, CGST, Division-Janakpuri]. The respondents again raised an issue in relation to furnishing of FIRCs. It was further stated that the decision of the Appellate Authority is erroneous and the Revenue proposes to file an appeal against the said decision. The said This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 29/11/2023 at 20:28:12 petition was allowed by an order of this Court dated 08.05.2023 and this Court directed the respondent to forthwith disburse the petitioner's claim for refund along with interest, in accordance with law. This Court also held that the deficiency memos issued shall be treated as non est and the Revenue cannot ignore the orders passed by the Appellate Authority on the ground that it proposes to file an appeal.
8. Paragraph 24 of the judgment dated 08.05.2023 is set out below:
"24. In view of the aforesaid, the petitioner would also be entitled to interest in accordance with law. The present petition is allowed. The respondent is directed to forthwith disburse the petitioner's claim for refund along with interest as payable in accordance with law."
9. To enable the respondent to give effect to the said order, the petitioner once again filed an application for refund. It appears that the Adjudicating Authority once again commenced the exercise for adjudicating the petitioner's claim and has partly rejected the same.
10. We are, prima facie, of the view that the concerned Adjudicating Authority (Deputy Commissioner, CGST, Uttam Nagar Division) has wilfully failed to implement the order dated 08.05.2023 passed by this Court, which in unambiguous terms directed the concerned authority to disburse the petitioner's claim along with interest, as applicable.
11. Issue notice to show cause as to why contempt proceedings not be initiated against the respondent for wilful disobedience of the order [dated 08.05.2023 in W.P.(C) No.5722/2023] passed by this Court.
12. Mr. Ojha, learned counsel appearing for the respondent accepts notice on behalf of respondent and seeks time to obtain instructions.
13. The concerned officer (Mr. Arjun Banerjee, Deputy Commissioner, CGST, Uttam Nagar Division) is directed to remain present in Court on the This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 29/11/2023 at 20:28:13 next date of hearing.
14. List on 18.12.2023.
VIBHU BAKHRU, J AMIT MAHAJAN, J NOVEMBER 22, 2023 'gsr' This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 29/11/2023 at 20:28:13