TaxTMI 
TaxTMI 
2021 (5) TMI 936
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.... APPL/JPR/CGST/JP/46/VII/2020/ RFD-06, dated 23-4-2020 Application for refund claim of excess Tax paid for the period of July-2017 Rs. 65,274/- Refund rejected Rs. 65,274/-. 2. APPL/JPR/CGST/JP/45/VII/2020/ RFD-06, dated 23-4-2020 Application for refund claim of excess Tax paid for the period of September-2017 Rs. 43,56,732/- Refund rejected Rs. 43,56,732/- 3. APPL/JPR/CGST/JP/44/VII/2020/ RFD-06, dated 23-4-2020 Application for refund claim of excess Tax paid for the period of October-2017 Rs. 6,96,332/- Refund rejected Rs. 6,96,332/-. 2. Brief facts of the case : 2.1 The appellant having GSTIN 08AACCG2107K1ZT is engaged in providing passive infrastructure telecommunication services has filed refund claims under Section 54 of the CGST Act, 2017 for the period and amount mentioned in Para-1 above in Table of column Nos. 4 & 5 on account of excess payment of GST. On examination of refund claims filed by the appellant, the adjudicating authority observed that the refund claims were liable to be rejected on the grounds hit by limitation of time limit as the appellant has filed refund claims after expiry of 2 years from the relev....
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..... Thus the time limit provided under Section 54(1) of the CGST Act, 2017 does not apply. It is further submitted that Section 54(1) also provides for the phrase "any other amount paid". Therefore, without prejudice to any submission, even if it is assumed but not admitted that the excess amount paid by the appellant falls under the phrase "any other amount paid" then also the time limit provided under Section 54 shall not apply as the phrase "any other amount paid" shall be read with the phrase "refund of any tax and interest" as per the principle of "ejusdem generis". The "any other amount paid" has to be in the nature of tax. 1.5 It is submitted that the principle of "ejusdem generis" and "noscitur a sociis" are essentially principle of construction of the statute, that provide that the words used in a statute should be interpreted along with the words in appellant which they occur i.e. the word occurring together derive the colour from each other. 1.6 Thus, it is submitted that as per the principle of ejusdem generis the phrase "any other amount paid" shall be read along with the phrase "refund of any tax and interest". The "any other amount paid" has....
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....65,274/-. Thus it is submitted that it does not partake the character of tax inasmuch there was no GST liability to that extent. Thus, time limit to file refund application under Section 54(1) of the CGST Act, 2017 cannot be applied as the said section provides for refund of tax. 2.3 The Assistant Commissioner in para 3 has observed that the above judgment cited by the appellant in reply to the show cause notice relate to the pre GST era and it is not fit for application in GST law as the provisions under GST law are different from the indirect tax provisions existing before GST law provision. 2.4 It is submitted that the judgments cited in the old law i.e. the pre-GST era, act as a precedent in the GST era. The refund provisions under Central Excise Act, 1944 have been provided under Section 11 of the said Act. 3. The GST portal does not allow the mechanism to revise GSTR-3B. 3.1 The Assistant Commissioner in para 4 has observed that the GST law as per Section 39(9) of the CGST Act, 2017 provides ample time to rectify any omission or incorrect particulars in furnishing the returns and that the appellant has failed to make rec....
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....nner, and within such time, as may be prescribed : Provided that the Government may, on the recommendations of the Council, notify certain class of registered persons who shall furnish a return for every quarter or part thereof, subject to such conditions and restrictions as may be specified therein. GSTR3 2. Section 39(2) A registered person paying tax under the provisions of Section 10, shall, for each financial year or part thereof, furnish a return, electronically, of turnover in the State or Union territory, inward supplies of goods or services or both, tax payable, tax paid and such other particulars in such form and manner, and within such time, as may be prescribed CMP 08 which was earlier GSTR4 3. Section 39(3) Every registered person required to deduct tax at source under the provisions of Section 51 shall furnish, in such form and manner as may be prescribed, a return, electronically, for the month in which such deductions have been made within ten days after the end of such month. GSTR 7 4 Section 39(4) Every taxable person registered as an Input Service Distributor shall, for every calendar month or part thereof, furnish, in such form and ....
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....stered person, other than an Input Service Distributor, a non-resident taxable person and a person paying tax under the provisions of section 10 or section 51 or section 52, shall furnish, electronically, in such form and manner as may be prescribed, the details of outward supplies of goods or services or both effected during a tax period on or before the tenth day of the month succeeding the said tax period and such details shall be communicated to the recipient of the said supplies within such time and in such manner as may be prescribed : 38.(1) Every registered person, other than an Input Service Distributor or a non-resident taxable person or a person paying tax under the provisions of section 10 or, section 51 or section 52, shall verify, validate, modify or delete, if required, the details relating to outward supplies and credit or debit notes communicated under sub-section (1) of section 37 to prepare the details of his inward supplies and credit or debit notes and may include therein, the details of inward supplies and credit or debit notes received by him in respect of such supplies that have not been declared by the supplier under sub-section (1) of section....
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.... of the CGST Act, 2017, the provision of Section 39(9) of the CGST Act, 2017 cannot be made applicable. 3.11 Without prejudice to the above submission, it is submitted that the Section 39(9) of the CGST Act, 2017 provides for rectification of any omission or incorrect particulars in furnishing of returns when the registered person discovers any omission or incorrect particulars. In the present case, it is submitted that the appellant discovered the fact of excess amount paid by the company only when filing the Annual return filed for the financial year 2017-18. The excess amount inadvertently paid by the company is also recorded in the Annual return filed for the financial year 2017-18. The copy of the Annual return filed for the financial year 2017-18 is attached. Thus, it is submitted that the appellant filed the refund application as they discovered the excess amount paid. 3.12 In view of the above submissions, it is submitted that the observation of the Assistant Commissioner is liable to be set side. 4. The appellant has paid the excess amount of GST by mistake and lack of knowledge of the accountant. 4.2 Further the said....
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.... MUMBAI] • M/s. K.V.R. Constructions - 2010 (17) S.T.R. 6 (Kar.), also maintained by the Hon'ble Supreme Court in Commissioner v. KVR Construction - 2018 (14) G.S.T.L. J70 (S.C.) • M/s. Hind Agro Industries Ltd. v. Commissioner of Customs reported in 2008 (221) E.L.T. 336 (Del), • M/s. Nataraj and Venkat Associates (supra). • Commissioner of Central Excise, Bangalore v. Motorola India Pvt. Ltd. [2006 (206) E.L.T. 90 (Kar.) = 2008 (11) S.T.R. 555 (Kar.)] • M/s. India Cements Ltd. v. Collector of Central Excise - 1989 (41) E.L. T. 358, • M/s. Parijat Construction - 2018 (359) E.L.T. 113 (Bom.). • M/s. Geojit BNP Paribas Financial Services Ltd. - 2015 (39) S.T.R. 706 (Ker.). • M/s. National Institute of Public Finance and Policy, 2018 (8) TMI 1524 - Delhi High Court = 2019 (20) G.S.T.L. 330 (Del.). 4. Personal Hearing in the case was held on 14-10-2020. Shri Naveen Mittal, Senior Executive Accounts and Shri B.P. Sharma, DGM (Accounts & Finance) appeared for personal hearing through video conference. He explained the case in detail and reiterated the submission made in the gr....
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....ed exports is furnished; (c) in the case of services exported out of India where a refund of tax paid is available in respect of services themselves or, as the case may be, the inputs or input services used in such services, the date of - (i) receipt of payment in convertible foreign exchange [or in Indian rupees wherever permitted by the Reserve Bank of India], where the supply of services had been completed prior to the receipt of such payment; or (ii) issue of invoice, where payment for the services had been received in advance prior to the date of issue of the invoice; (d) in case where the tax becomes refundable as a consequence of judgment, decree, order or direction of the Appellate Authority, Appellate Tribunal or any court, the date of communication of such judgment, decree, order or direction; (e) in the case of refund of unutilised input tax credit under clause (ii) of the first proviso to sub-section (3), the due date for furnishing of return under section 39 for the period in which such claim for refund arises;] (f) in the case where tax is paid pro....
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....GSTR-3B is not acceptable in the instant case. As per Para 3 of C.B.I. & C. Circular No. 37/11/2018-GST, dated 15-3-2018 which reads as under :- 3. Amendment through Table 9 of GSTR-1 : It has been reported that refund claims are not being processed on account of mis-matches between data contained in FORM GSTR-1, FORM GSTR-3B and shipping bills/bills of export. In this connection, it may be noted that the facility of filing of Table 9 in FORM GSTR-1, an amendment table which allows for amendments of invoices/shipping bills details furnished in FORM GSTR-1 for earlier tax period, is already available. If a taxpayer has committed an error while entering the details of an invoice/shipping bill/bill of export in Table 6A or Table 6B of FORM GSTR-1, he can rectify the same in Table 9 of FORM GSTR-1. 3.1 It is advised that while processing refund claims on account of zero rated supplies, information contained in Table 9 of FORM GSTR-1 of the subsequent tax periods should be taken into cognizance, wherever applicable. 3.2 Field formations are also advised to refer to Circular No. 26/26/2017-GST, dated 29th December, 2017 [2018 (8) G.S.T.L. C3....