ALEX TOUR AND TRAVEL PRIVATE LIMITED v. DEPUTY COMMISSIONER, CGST, UTTAM NAGAR DIVISION
Delhi High Court | W.P.(C) 12739/2023 | Refund of ITC | Order dated 22.11.2023
Bench: Justice Vibhu Bakhru & Justice Amit Mahajan
Statutory Provisions Involved:
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Section 54, CGST Act, 2017 – Refund of tax / ITC
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Section 56, CGST Act, 2017 – Interest on delayed refund
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Rule 89, CGST Rules, 2017 – Refund application
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General Principles of Binding Nature of Appellate Orders
FACTS (Paras 1–9)
The petitioner, an exporter of services, filed two refund applications for unutilised ITC—one dated 14.04.2021 for FY 2019-20 (₹2,15,63,451) and another dated 13.04.2021 for FY 2018-19 (₹46,38,276) (para 2). These were rejected by the Adjudicating Authority on two grounds:
(i) classification of petitioner as an intermediary, rendering exports ineligible (para 3), and
(ii) FIRCs filed were consolidated, not in prescribed format (para 3).
On appeal, the Order-in-Appeal dated 28.07.2022 overturned these findings, holding that transaction-wise FIRCs are not feasible in export service transactions, and consolidated FIRCs constitute sufficient proof of foreign inward remittance (para 4). Refund was allowed.
Despite this, fresh refund claims filed with interest were not processed, and instead fresh SCNs and deficiency memos were issued (para 5). The department took the position that it intended to file an appeal against the Order-in-Appeal (para 6).
The petitioner filed W.P.(C) 5722/2023, in which the High Court on 08.05.2023 categorically held that:
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deficiency memos are non est, and
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refund must be forthwith disbursed with interest (paras 7–8).
Even thereafter, the authority again undertook adjudication and partly rejected refund (para 9), compelling the petitioner to file the present writ petition alleging wilful disobedience.
QUESTIONS / ISSUES (Arising from Paras 5–11)
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Whether the Adjudicating Authority could re-adjudicate refund claims despite the appellate authority and High Court having conclusively allowed the refunds?
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Whether issuing repeated SCNs/deficiency memos after an appellate order amounts to wilful disobedience?
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Whether deliberate non-compliance with the High Court’s order dated 08.05.2023 attracts contempt jurisdiction?
COURT’S OBSERVATIONS (Paras 10–11)
The Bench recorded prima facie satisfaction that the Deputy Commissioner had wilfully failed to implement the categorical directions issued earlier in W.P.(C) 5722/2023 (para 10).
The Court emphasised that its earlier order unambiguously required the authority to:
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disburse refund, and
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pay statutory interest (para 8).
By ignoring both the Order-in-Appeal and the High Court’s earlier writ decision, and instead reopening refund adjudication, the authority acted in patent disregard of judicial hierarchy and binding precedent (paras 9–10).
Accordingly, the Court found sufficient grounds to initiate contempt proceedings (para 11).
JUDGMENT / VERDICT (Paras 11–14)
The Court issued notice to show cause to the Deputy Commissioner, CGST, Uttam Nagar Division, as to why contempt proceedings should not be initiated for deliberate non-compliance with the High Court’s order dated 08.05.2023 (para 11).
Counsel accepted notice and sought time for instructions (para 12).
The Court directed the concerned officer, Mr. Arjun Banerjee, to remain personally present on the next date (para 13).
Matter listed for 18.12.2023 (para 14).
SUMMARY OF CASES REFERRED (TABLE)
(Only cases cited in the uploaded order are included. The order refers only to its own earlier judgment in W.P.(C) 5722/2023.)
| Case | Court & Petition No. | Key Issue | Verdict |
|---|---|---|---|
| Alex Tour & Travel Pvt. Ltd. v. Assistant Commissioner, CGST (W.P.(C) 5722/2023) | Delhi High Court | Failure of department to comply with appellate order on refund | Refund with interest directed to be disbursed; deficiency memos held non est; department cannot ignore appellate order merely because appeal is proposed. |
BETWEEN FINE LINES – INDUSTRY TAKEAWAYS
This order reinforces that once an assessee wins at the appellate stage, refund adjudication cannot be reopened. SCNs, deficiency memos or attempts to revisit eligibility—under the pretext of intending to appeal—are legally untenable. Non-compliance with binding appellate or High Court decisions exposes departmental officers to personal contempt liability, thereby strengthening the certainty and enforceability of refund rights under Section 54/56, CGST Act.
Disclaimer – “The above summary is for academic purpose only; not formal legal opinion. Seek professional opinion before application. Author or publisher or website shall not be responsible for any usage in any form.”
