2003 PLP 2752 (PTD)

2. The Complainants stated that since 2000 they have been continuously contacting the Deputy Collector of Sales Tax (Refund Division), SITE, Hyderabad, for refund of Rs.10,62,440 but without result. They alleged that the respondent was applying delaying tactics with mala fide intention. They requested that the Deputy Collector be directed to release the additional sales tax amounting to Rs.10,62,440 without further delay along with mark‑up for the intervening period.

3. The Collector of Sales Tax and Central Excise, Hyderabad, replying to the complaint admitted that additional sales tax Rs.4,80,079 and Rs.5,82,361 adjudged against the Complainants vide the aforesaid two orders, were deposited by them, and the Appellate Tribunal remitted the same vide short order, dated 27‑10‑2000. The Collector invited attention to the following text of the Appellate Tribunal's order:‑‑ "The appeal is against additional tax only. The learned counsel for the appellant states that they have already paid the principal amount. This fact has also been confirmed by the departmental representative. After hearing the arguments at length and in the facts and circumstances of the case we are inclined to remit the additional tax."

4. He stated that the short order did not describe the facts and grounds on which the Appellate Tribunal remitted the mandatory recoverable additional tax. The complainants were, therefore, requested vide letter, dated 10‑4‑2001 to provide the detailed judgment before finalizing the refund claim. They, vide letter, dated 27‑11‑2001, submitted the short order and they were again requested, vide letter, dated 5‑1‑2002, to provide the detailed order. They were also requested to provide proof of payment and specify the details of payment against respective Orders‑in‑Original vide letter, dated 4‑3‑2002.

5. The Collector stated that the complainants failed to provide detailed judgment and the Department vide letter, dated 13‑3‑2002 requested the Appellate Tribunal in this behalf. The Tribunal heard the matter on 5-3‑2003 and observed that one of the members who passed short order, dated 27‑10‑2000 had retired from service, the detailed order could not be passed at this stage, and referred the matter to the Chairman of the Tribunal for necessary orders.

6. During the hearing of the complaint the Legal Assistant of the Complainants stated that the order was passed by the Tribunal on 27‑10‑2000 for remission of additional tax and they applied for refund vide application, dated 24‑3‑2001 followed by 10 reminders. After more than 1 years, the Department asked them to obtain the detailed order from the Tribunal. He informed the Department vide letter, dated 7‑5‑2002 that the two Members of the Tribunal had retired and judgment already passed could not be re‑written by another Bench. On receiving notice from Federal Tax Ombudsman's Office, the Department filed an application before the Tribunal to supply the detailed order so as to file appeal in the High Court. The period of appeal of 60 days had already expired and the order of the Tribunal had attained finality.

7. The deputy Collector stated that the Department wanted to file an appeal before the High Court and since that Tribunal had not recorded the reasons for remitting additional tax, they did not know the grounds against which they should file the appeal. The Department applied to the Tribunal to supply the detailed order and they referred the matter to the Chairman for decision. He stated/argued that the matter was sub judice for issue of the detailed order.

8. The facts of the case are quite simple that the orders for levy of additional sales tax were passed in 1996 and 1997 and the Appellate Tribunal remitted this levy in October, 2000. Application for refund of the remitted additional tax was filed in March, 2001 and ten reminders were sent but the refund was not paid. The Tribunal's order should have been implemented, but the Department did not take any action for one and a half years and did not even reply to the letters and reminders. The Department instead asked the Complainants to obtain and produce the detailed order. In Mach, 2002 the Department claimed to have approached the Assistant Registrar of the Tribunal for a detailed order, and according to their strange logic the matter was sub judice. If the Department wanted to file an appeal before the High Court, they should have done so within the prescribed time limit of the issue of the Tribunal's order.

9. Clearly the stand of the respondents that the matter was sub judice is misconceived and the order passed by the Appellate Tribunal in October 2000, having attained finality, should be implemented. The matter has been kept pending for more than two years without any justification. It is a case of maladministration on the part of sales tax authorities.

10. It is recommended that C.B.R. direct the Collector of Customs, Sales Tax and Central. Excise, Hyderabad, to: (i) decide the refund application within 15 days; and (ii) compliance be reported within 30 days. C.M.A./855/FTO Order accordingly.