Order Date – 15 June 2023

Parties: M/s Stallion Energy Private Limited Vs Union of India

Facts – 

• The Petitioner, M/s Stallion Energy Private Limited, is engaged in the business of supply of goods viz. coke and semi coke of coal. 
• A show cause notice was issued which culminated into adjudication order. Thereafter order of provisional attachment of the property under Section 83 of the Act came to be passed on 16.06.2022. Out of the total amount of Rs.56,14,388, Rs.46 lakhs came to be withdrawn by the respondents from the bank account of petitioner maintained with HDFC Bank.
• The petitioner preferred an appeal and prayed to refund the amount of Rs.42,44,664/- to the petitioner after deducting the pre-deposit amount.

Issue – 

• Whether the petitioner is entitled to refund of amount after deducting pre-deposit amount?

Order – 

• The Divisional Bench of Hon’ble High observed that it is not in dispute that the petitioner preferred an appeal under Section 107 of the Act after the period of limitation i.e. after a period of three months. Along with the said appeal, petitioner has also preferred separate application for condonation of delay. The said proceedings are still pending before the Appellate Authority.
• It is the case of the petitioner that as per the provisions contained in section 107 of the Act, the petitioner is required to pre-deposit 10% of the amount of tax. However, it is prayed that the respondents be directed to refund the remaining amount of Rs.42,44,664/- to the petitioner.
• Such contention is misconceived in view of the provisions contained in Section 73(9) read with Sections 78 and 107 of the Act. If the appeal filed by the petitioner is allowed by the Appellate Authority, it is always open for the petitioner to make such request before the Appellate Authority that direction be issued to the respondents to refund the amount.
• The petition is, accordingly, dismissed.