Point of Law : Once statute provides for payment of interest and stipulated conditions are fulfilled, respondent/revenue would be obliged, in law, to pay interest.

JUDGMENT :

RAJIV SHAKDHER, J.

1. The matter was listed, in the first instance, on 13.09.2021, when we had recorded the following after Mr Puneet Agarwal, learned counsel for the petitioner, was heard in support of the instant action :

“W.P.(C) 9628/2021 & CM No.29755/2021 [Application filed on behalf of the petitioner seeking stay on the operation of the impugned order]

2. The instant writ petition is directed against the Order-in-Original no. 01/2020-21 dated 30.06.2020, passed by the Assistant Commissioner, Goods and Service Tax (GST), and the show cause notice, dated 20.02.2020.

3. Mr. Puneet Agarwal, who appears on behalf of the petitioner, says that, the impugned order and show cause notice are flawed, broadly, for the following reasons:

(i) The impugned order, dated 30.06.2020, was passed by an officer who had no jurisdiction to pass the said order. According to Mr. Agarwal, demand for service tax in excess of Rs.50,00,000/- could have been adjudicated upon only by Additional/Joint Commissioner or a Commissioner [if the demand exceeds Rs.2,00,00,000/-].

(ii) In this behalf, Mr. Agarwal has relied upon paragraph 11.1 of the Central Board of Excise and Customs (CBEC) circular bearing no. 1053/02/2017-CX, dated 10.03.2017.

(iii) No pre-show cause notice consultation was carried out, although, the demand was over Rs.50,00,000/-, which was a requirement of paragraph 5 of the aforementioned circular dated 10.03.2017

(iv) No hearing was given to the petitioner prior to passing of the impugned order.

(v) The impugned order has gone beyond the order of remand, passed by the Commissioner, Appeals-I, GST, Delhi [hereafter referred as ‘Commissioner (Appeals-I)’], dated 30.05.2019.

(vi) According to Mr. Agarwal, the remand order was restricted to the issue, concerning the purported failure, in not granting to the petitioner, the claim for refund of cess quantified at Rs.36,94,642/-. For this purpose, our attention has been drawn to the Order-in-Original, passed in the first round, dated 03.01.2019 and the remand order passed by the Commissioner (Appeals-I), dated 30.05.2019. [See Annexure ‘P-14’ and ‘P-17’.]

(vii) Lastly, it is stated that, the impugned show cause notice is based on inaccurate facts. For this purpose, our attention has been drawn to paragraph 8 at page 75 of the case file, wherein it is stated that, on account of ‘Business Auxiliary Services’, the petitioner had failed to pay service tax amounting to Rs.2,40,03,002/-. Mr. Aggarwal has pointed out that this amount has been paid. In this behalf, our attention has been drawn to page 178 and 232 of the case file.

4. We may note that, the record, at present, shows that the case set up by the petitioner was that, it had deposited excess amount towards service tax and cess, and since certain amounts remained unutilized, it wanted refund of the excess amount.

4.1. In the first round, the Order-in-Original dated 03.01.2019 had pegged the refund amount, at Rs.2,32,09,285/-. In doing so, it denied refund attributable to cess amounting to Rs.36,94,642/-.

4.2. It is because of this grievance that the petitioner had carried the matter in appeal to the Commissioner (Appeals-I), who, via order dated 30.05.2019, had remanded the matter to the adjudicating authority.

4.3. The grievance of the petitioner is that, the adjudicating authority, instead of confining itself to this aspect of the matter, broadened the scope of the adjudication by issuance of the impugned show cause notice dated 20.02.2020, and thereafter, went on to adjudicate the matter, vide order dated 30.06.2020, contrary to the scope of the order of remand.

4.4. The petitioner claims that the injury inflicted was further compounded by not according personal hearing to the petitioner. It is in this context that, various flaws [as noted above by us], in the impugned order, have been pointed out by the petitioner.

5. Issue notice to the