LARSEN AND TOUBRO LTD. Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner, having succeeded before the Tribunal, applied for refund to the adjudicating authority. The adjudicating authority however rejected the refund claims, against which the petitioner has preferred appeal before the Appellate Commissioner. Having heard learned counsel for the parties, we expect the Appellate Commissioner to decide such appeal latest by 28-2-2016. Learned Counsel Shri Ravani for the Revenue however submitted that the Commissioner has presently kept the appeal in "call book" as per the circular. In other words, has kept the hearing of the appeal in abeyance sine die. This is presumably because the Departments appeal against the judgment of the Tribunal, which is in favour of the petitioner, is pending before the High Court. However, we notice that while admitting the appeal, the High Court has rejected the Departments stay application. When, thus, the Court refused to stay implementation of the judgment of the Tribunal, benefit thereof must flow in favour of the assessee who has succeeded. The action of the Commissioner in keeping the appeal against the order of the adjudicating authority refusing to grant refund would be an indirect attempt to deny the benefit to the petitioner flowing from such judgment of the Tribunal when the High Court refused to grant protection. The Commissioner by way of indirect method cannot bestow the same unto himself. Under the circumstances, the Commissioner shall withdraw the appeal from the call book and dispose of the same as directed. The petition is disposed of with these directions.