‘HCs not custodian of revenue’: SC stays order halting refund
The court also asked the government to explain why it had not approached the Supreme Court directly after the CESTAT passed its order on January 24, 2025.
The Supreme Court on Friday asserted that high courts are not the “custodian of the Revenue (Department),” pulling up the Bombay High Court for staying a tribunal order directing a refund of ₹256.45 crore to a private company despite holding that it lacked jurisdiction in the matter. Calling the high court’s order “strange”, the top court stayed the June 12 directive, observing that courts must strictly adhere to the rule of law.
“A high court is not the custodian of the revenue (department). It is a strange order. How can the high court issue such an order after saying that it does not have the jurisdiction to entertain the matter?” a bench of Justices Ujjal Bhuyan and Manmohan said while hearing a plea filed by Tenormac Enterprises Pvt Ltd, the company entitled to the refund as per an earlier tribunal ruling.
In its June 12 ruling, the Bombay High Court admitted in its own ruling that neither the Revenue (Department’)s statutory appeal nor the writ petition challenging the refund order was maintainable before it. Yet, it went on to stay the implementation of the order passed by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT).
The Supreme Court took exception to this, stating that even the Union government must adhere to legal remedies laid down by statute. “We are following the rule of law. Just because you are the Union of India, you cannot go here and there and get a stay. Courts must pass orders proper in law,” the bench remarked.
Senior advocate Rafiq Dada, representing Tenormac, strongly opposed the high court’s intervention, calling the stay unjustified. Additional Solicitor General SD Sanjay, appearing for the Revenue Department, tried to underline the stakes involved: “Here the question is about over ₹200 crore,” he told the court.
But the bench remained firm: “The high court said it is not on the quantum but it should protect the interest of the revenue (department). This order is against all canons of law. The high court is expected to pass proper orders.”
The court also asked the government to explain why it had not approached the Supreme Court directly after the CESTAT passed its order on January 24, 2025. “What prevented you from filing an appeal before this court?” the bench asked.
In its interim order, the Supreme Court stayed the Bombay high court’s June 12 ruling and clarified that the Revenue Department is free to pursue its appeal before the apex court, which has proper jurisdiction to examine matters involving the rate of duty or valuation. The case will be heard again on July 2.
The dispute arose from orders passed by the CESTAT in favour of Tenormac Enterprises. On January 24, the tribunal allowed the company’s appeal, and on May 6, it directed the Revenue Department to process a cash refund of ₹256.45 crore. The Bombay high court was approached by the Commissioner of CGST & Central Excise, Belapur, through a writ petition and a statutory appeal under Section 35G of the Central Excise Act.
However, the high court itself noted that since the issues involved rate of tax and valuation, it lacked jurisdiction under Section 35G, and the appeal should go directly before the Supreme Court under Section 35L. It also agreed that the May 6 refund directive was merely a consequential order made under Rule 41 of the 1982 Tribunal Rules, giving effect to the earlier judgment.
Still, acceding to the government’s request for interim protection, the high court stayed the refund for eight weeks to allow the Revenue Department to approach the apex court, noting that recovering the sum could be difficult if it was disbursed and the Revenue Department later succeeded on appeal. The court also recorded that Tenormac had ceased operations, raising concerns about the ability to recover the amount if needed.
