TaxTMI 
TaxTMI 
2021 (3) TMI 339
X X X X Extracts X X X X
X X X X Extracts X X X X
....s to customers located outside India. It has its registered office at Andheri (East), Mumbai. 4. Under the erstwhile service tax regime, petitioner was registered with the service tax department. With effect from 01.07.2017, goods and services tax (GST) regime came into effect with the introduction of Central Goods and Services Tax Act, 2017 and the corresponding Maharashtra Goods and Services Tax Act, 2017 in so far State of Maharashtra is concerned. The erstwhile Central Excise Act, 1944 and Chapter V of the Finance Act, 1994 dealing with service tax stood subsumed in the Central Goods and Services Tax Act, 2017. All the assessees under the erstwhile two enactments dealing with central excise and service tax were required to migrate to the GST regime in terms of section 139(1) of the Central Goods and Services Tax Act, 2017 (briefly 'the CGST Act' hereinafter). 5. In compliance thereto petitioner migrated from service tax registration to GST registration and was allotted GST identification number in the State of Maharashtra. 6. It is stated that petitioner had entered into a master agreement dated 03.05.2004 with Bank of America National Association (for short 'BANA' her....
X X X X Extracts X X X X
X X X X Extracts X X X X
....upply is India then the said supply of services would not be eligible to be treated as export of services as per section 2(6) of the IGST Act. Hence, the claim of refund of input tax credit on export of services without payment of integrated tax was not liable to be allowed. Petitioner was directed to file reply before the respective due dates. 9.1. Representative of the petitioner personally met respondent No.4 and requested for personal hearing post filing of reply. Due to technical glitches on the GSTN portal, petitioner was initially not able to file its replies on the portal. The replies were filed through various emails denying the allegations and contentions advanced in the show cause notices. However, petitioner subsequently filed its respective replies to the show cause notices on the GSTN portal in the prescribed format on 18.03.2020 and 19.03.2020. 10. On 16.03.2020, representative of the petitioner called upon respondent No.4 who instructed the representative to submit certain documents and informed him that after submission of the documents, personal hearing would be granted to the petitioner. 11. Because of outbreak of coronavirus pandemic, it is stated that ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....isions as contained in section 7(5)(c) of IGST Act would be applicable and hence IGST is payable on the transactions under dispute. 15.1. Petitioner does not satisfy the conditions for treating the supply of services as an export of services. Since petitioner has not paid IGST, that amount of IGST would offset the quantum of refund claimed. Therefore, for the said reason, petitioner is not eligible and entitled to refund. 16. Assailing the legality and validity of the aforesaid orders, present writ petition has been filed seeking the relief as indicated above. 17. On 22.09.2020, this Court had passed the following order:- "3. Mr. Shah submits that this is a case where petitioner's claim to refund has been rejected without giving any opportunity of hearing to the petitioner. In this connection he has referred to Rule 92(3) more particularly to the proviso thereto of the Central Goods and Services Tax Act, 2017 which clearly provides that no application for refund shall be rejected without giving the applicant an opportunity of being heard. He has also taken us to the impugned order of the Assessing Officer at Page-292 of the paper-book and submits that Assessing Of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ders have been passed on merit. If petitioner is aggrieved by the impugned orders, proper remedy would be to prefer appeal under section 107 of the MGST Act. 19.2. Touching upon merit, it is contended that refund applications for five quarters were filed by the petitioner seeking refund of input tax credit on export of services without payment of IGST. After perusal of the service agreement and other relevant documents on record, it is observed that nature of services provided by the petitioner to BANA falls within the definition of 'intermediary services' under section 2(13) of the IGST Act, 2017. Therefore, petitioner is not qualified for export of services, place of supply being in India. Thus, the petitioner is required to pay IGST on such transactions. In the instant case, respondent Nos.2 to 4 have not raised the demand but have only rejected the claim for refund in respect of unutilized input tax credit by holding that IGST is payable on such transactions. However, no demand has been raised as of date upon the petitioner. In this connection, reference has been made to the master agreement dated 03.05.2004. 19.3. Following the show cause notices date of hearing was give....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e grant of personal hearing. Duration of such telephonic conversations lasted from a few seconds to about 10 minutes. Besides emails exchanged were regarding submission of documents and not on merit of the claim. 20.1. Regarding availability of alternative remedy of appeal, it is contended that there is clear violation of the principles of natural justice which has rendered the impugned orders void. Since infringement of the rules of natural justice strikes at the root, it is a good ground for invoking the power of judicial review. That apart, the reply affidavit has been filed by an officer of the rank of Joint Commissioner which is also the rank and designation of the appellate authority. Claim of the petitioner to refund has been contested and denied on merit by the affiant. Therefore, filing of appeal would be a futile exercise. 20.2. That apart, petitioners have reiterated the contentions advanced in the writ petition while denying the stand taken by the respondents in the reply affidavit. 21. Mr. Prakash Shah, learned counsel for the petitioner has at the outset referred to rule 92 of the CGST Rules. He submits that under rule 92(3) of the CGST Rules where the proper....
X X X X Extracts X X X X
X X X X Extracts X X X X
....oint Commissioner in the affidavit in reply while controverting the averments made in the writ petition has touched upon the merit of the claim made by the petitioner and has refuted the same on merit. 21.4. Therefore, he submits that the impugned orders being ex-facie illegal being violative of the principles of natural justice are liable to be set aside and quashed. Claim of the petitioner to refund is liable to be heard afresh. 22. Ms. Jyoti Chavan, learned AGP appearing for the respondents has referred to various provisions of the CGST Act and the MGST Act. Referring to section 107 of the MGST Act, she submits that the impugned orders rejecting the claim of the petitioner to refund are appealable orders under sub-section (1) of section 107. Therefore, petitioner has got statutory alternative remedy which is also efficacious. When the petitioner has got adequate and efficacious statutory alternative remedy, this Court may not invoke its extra-ordinary jurisdiction under Article 226 of the Constitution of India to entertain the writ petition. 22.1. That apart, learned AGP submits that the dispute involved is claim to refund which according to the respondents petitioner i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d made a specific prayer to respondent No.4 not to pass any ex-parte order without granting personal hearing to the petitioner. Notwithstanding the same the ex-parte orders were passed. Therefore, this is a fit case for intervention by the Court. 24. Submissions made by learned counsel for the parties have received the due consideration of the Court. Also perused the materials on record. 25. At the outset we may mention that this Court under Article 226 of the Constitution of India is confining its scrutiny to the decision making process culminating in passing of the impugned orders dated 26.06.2020. In exercise of the power of judicial review, merit of the decision per se is not being examined. It is the decision making process with which judicial review is concerned. Therefore, we are consciously not entering into the arena of merit of the petitioner's claim to refund at this stage. 26. We have already noticed that petitioner had filed five applications for refund covering five periods from April, 2018 to June, 2019 in the prescribed format on 27.12.2019, 21.01.2020, 27.01.2020, 17.02.2020 and 19.02.2020. Respondent No.4 issued show cause notices thereafter to the pe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ysical hearing while rejecting refund applications. 30. Petitioner in its detailed reply dated 22.04.2020 had specifically requested respondent No.4 to withdraw the proposal to pass ex-parte orders in its case without granting personal hearing based on detailed legal and factual submissions. This was followed by a number of e-mails requesting respondent No.4 for granting opportunity of being heard in person. 31. It may be mentioned that there were some telephonic conversations between officials working under respondent No.4 and the tax consultants of the petitioner. While respondents would like to contend that such telephonic conversations can be construed to be an extension of hearing, the same has been disputed by the petitioner by contending that those conversations were for very brief periods lasting for about a minute or so in which subordinate officials working under respondent No.4 sought for documents etc. In any event, no record of such telephonic conversations have been maintained. What transpired in such conversations is also not known. Therefore, such telephonic conversations cannot be a substitute for a hearing in person or cannot be construed to be a hearing. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... considering the reply make an order sanctioning the amount of refund in whole or in part or rejecting the refund claim which order shall be made available to the applicant. As per the proviso, an application for refund shall not be rejected without giving the applicant an opportunity of being heard. Therefore, there is a clear legal mandate that if an application for refund is to be rejected, the same can only be done after giving the applicant an opportunity of being heard. 35. The expression 'opportunity of being heard' is not an expression of empty formality. It is a part of the well-recognized principle of audi alteram partem which forms the fulcrum of natural justice and is central to fair procedure. The principle is that no one should be condemned unheard. It is not necessary to delve deep into the expression save and except to say that by way of judicial pronouncements the said expression has been made central to the decision making process, breach of which would be construed to be violation of the principles of natural justice thus adversely affecting the decision making process; a ground for invoking the power of judicial review. 36. When the law requires th....