TaxTMI 
TaxTMI 
TaxTMI 
2019 (7) TMI 1282
X X X X Extracts X X X X
X X X X Extracts X X X X
....e paid by the Respondents; 2. The case of the writapplicants in their own words as pleaded in the writapplication is as follows:- 2.1 The petitioner no.1 is a registered partnership firm having registration number 99984019206 and its principal place of business is at 902, 9th Floor, Indraprasth Corporate, Opposite Shell Petrol Pump, Satellite, Ahmedabad, Gujarat380015. The petitioners state that the petitioner no.1 is registered under the CGST Act and IGST Act 2017, vide registration bearing no.24ADDFS3029H1ZA. 2.2 The petitioner no.2 is a citizen of India and partner of the petitioner no.1 firm. In the instant case, by reasons of the wrongful and illegal actions of the respondents, the rights of the petitioner no.2 to carry on business and/or hold property through the agency and/or instrumentality of the petitioner no.1 has been seriously prejudiced and adversely affected. 2.3 The respondent no.1 is the Union of India, represented through the Ministry of Finance, Department of Revenue and is responsible for notifying the IGST Act, 2017 and also responsible for framing the rules thereunder. The respondent no.2 is the Central Board of Indirect Tax and Custom, Department o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... that acknowledgment for application for claim for refund in FORM GST RFD02 shall be made available to the applicant through the common portal electronically within fifteen days of the filing of the application. If any deficiencies are noticed, the proper officer shall communicate the deficiencies to the applicant in FORM GST RFD03 through the common portal electronically, requiring him to file a fresh refund application after rectification of such deficiencies. 2.11 The petitioners further states that it appears from the bare perusal of Section 54(6) of the CGST Act read with Rule 91 of the CGST Rule that a registered person exporting goods is entitled to provisional refund of 90% of his refund claim within a period not exceeding seven days from the date of the acknowledgment unless the person claiming refund has, during any period of five years immediately preceding the tax period to which the claim for refund relates, has been prosecuted for any offence under the Act or under an existing law where the amount of tax evaded exceeds two hundred and fifty lakh rupees or the proper officer, after scrutiny of the claim and the evidence submitted in support thereof is prima facie no....
X X X X Extracts X X X X
X X X X Extracts X X X X
....titioners further state that it did not receive any deficiency notice also as prescribed under Rule 90 in FORM GST RFD03 about the deficiencies, fi any, in the application for refund. 2.19 The petitioners further state that it has not been prosecuted for any offence under the Act or under an existing law where the amount of tax evaded exceeds two hundred and fifty lakh rupees during any period of five years immediately preceding the tax period to which the claim for refund relates. 2.20 The petitioners further state that it has not defaulted in furnishing any return, tax, interest or penalty. 2.21 The petitioners further state that it has not exported the goods in violation of the provisions of the Customs Act, 1962. 2.22 The petitioners having no option available with it to lodge their claim of interest on delayed refund also approached their jurisdictional GST authorities i.e. Assistant Commissioner, Commissionerate: Ahmedabad, Ghatak:9 to guide them about claim of interest on refund. However, the above officer expressed his inability to help the petitioner in any which manner, stating that all refund related processing is only being done through GST portal and he is ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....k into few relevant provisions of the Act and the Rules. 9. Section16 of the IGST Act is set out below:- Section16. Of the IGST Act (1) "zero rated supply" means any of the following supplies of goods or services or both, namely:-- (a) export of goods or services or both; or (b) supply of goods or services or both to a Special Economic Zone developer or a Special Economic Zone unit. (2) Subject to the provisions of subsection (5) of section 17 of the Central Goods and Services Tax Act, credit of input tax may be availed for making zerorated supplies, notwithstanding that such supply may be an exempt supply. (3) A registered person making zero rated supply shall be eligible to claim refund under either of the following options, namely:-- (a) he may supply goods or services or both under bond or Letter of Undertaking, subject to such conditions, safeguards and procedure as may be prescribed, without payment of integrated tax and claim refund of unutilised input tax credit; or (b) he may supply goods or services or both, subject to such conditions, safeguards and procedure as may be prescribed, on payment of integrated tax and claim refund of such tax paid on....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... subrule (1) or subrule (2) of rule 90 . (3) The proper officer shall issue a 3payment advicepayment order in FORM GST RFD05 for the amount sanctioned under subrule (2) and the same shall be electronically credited to any of the bank accounts of the applicant mentioned in his registration particulars and as specified in the application for refund. 12. Rule 90 of the CGST Rule provides that the acknowledgment for application for claim for refund in FORM GST RFD01 shall be made available to the applicant through the common portal electronically within 15 days of the filing of the application. Rule 90 is set out below:- Rule 90 Acknowledgement: (1) Where the application relates to a claim for refund from the electronic cash ledger, an acknowledgement in FORM GST RFD02 shall be made available to the applicant through the common portal electronically, clearly indicating the date of filing of the claim for refund and the time period specified in subsection (7) of section 54 shall be counted from such date of filing. (2) The application for refund, other than claim for refund from electronic cash ledger, shall be forwarded to the proper officer who shall, within a period of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... specified in Table 6A of FORM GSTR1 after the return in FORM GSTR3B has been furnished and the same shall be transmitted electronically by the common portal to the system designated by the Customs: Provided further that the information in Table 6A furnished under the first proviso shall be auto drafted in FORM GSTR1 for the said tax period. (3) Upon the receipt of the information regarding the furnishing of a valid return in FORM GSTR3 or FORM GSTR3B, as the case may be from the common portal, the system designated by the Customs or the proper officer of Customs, as the case may be, shall process the claim of refund in respect of export of goods and an amount equal to the integrated tax paid in respect of each shipping bill or bill of export shall be electronically credited to the bank account of the applicant mentioned in his registration particulars and as intimated to the Customs authorities. (4) The claim for refund shall be withheld where,- (a) a request has been received from the jurisdictional Commissioner of central tax, State tax or Union territory tax to withhold the payment of refund due to the person claiming refund in accordance with the provisions of subs....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tions of the Council shall be payable in respect of such refund from the date immediately after the expiry of sixty days from the date of receipt of application till the date of refund. Explanation: For the purposes of this section, where any order of refund is made by an Appellate Authority, Appellate Tribunal or any court against an order of the proper officer under subsection (5) of section 54, the order passed by the Appellate Authority, Appellate Tribunal or by the court shall be deemed to be an order passed under the said subsection (5). 15. Rule 94 of the CGST provides for the order sanctioning interest on delayed refunds. It reads as follows:- Rule 94: Order Sanctioning Interest on Delayed Refunds: Where any interest is due and payable to the applicant under section 56, the proper officer shall make an order along with a payment order in FORM GST RFD05, specifying therein the amount of refund which is delayed, the period of delay for which interest is payable and the amount of interest payable, and such amount of interest shall be electronically credited to any of the bank accounts of the applicant mentioned in his registration particulars and as specified in the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ts to pay interest at the rate of 8% on the aforesaid amount of Rs. 10 lacs to be calculated from January 2002 till 3rd April, 2003 when the payment of principal amount was effected. This payment of interest shall be made within a period of three months from the date of communication of this order. However, there will be no interest for this period." 18. A Five Judge Bench of the Supreme Court in the matter of K.T. Plantation Pvt. Ltd. & Anr. Vs. State of Karnataka reported at (2011) 9 SCC 1 in para 143 held that: ........ (e) Public purpose is a precondition for deprivation of a person from his property under Article 300A and the right to claim compensation is also inbuilt in that Article and when a person is deprived of his property the State has to justify both the grounds which may depend on scheme of the statute, legislative policy, object and purpose of the legislature and other related factors. ........ 19. A Division Bench of this Court in the matter of State of Gujarat Vs. Doshi Printing Press reported at MANU/GJ/0420/2015 held that:- 16. From the conjoint reading of the decision of the Apex Court in the case of Sandvik Asia Limited Vs. Commissioner of Incom....