2021 (7) TMI 808

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....17 Refund rejected Rs. 2,25,122/-. 2. BRIEF FACTS OF THE CASE: 2.1 The appellant having GSTIN No.08ACKPR7320J1Z8 has filed refund claim vide ARN No.AA0810200384525 dated 17.10.2020 under Section 54 (3) (i) of CGST Act, 2017 in respect of supplies to SEZ on payment of IGST . 2.2 On examination of refund claim filed by the appellant the adjudicating authority observed and has issued a show cause notice in Form GST-RFD-08 dated 29.10.2020 was liable to be rejected on account of the following reasons: "The taxpayer filed refund for the period of July 2017 (supplied goods to SEZ unit on 25.07.2017 with payment of tax) on 17.10.2020. In the refund claim they have submitted that they have not shown payment of tax of supply made to SEZ in GSTR 3B of July-2017 and the same has been corrected in GSTR 3B of September-2018. The refund claim appears time bar as the refund has been filed after Two years from the date of supply of the goods to SEZ unit, as per sub-section (1) of Section 54 of CGST Act, 2017. Hence refund claim may be rejected." Further, the adjudicating authority while passing the order has stated that "I hereby reject an amount of INR 0 to M/s Sunil Rastogi hav....

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.... the payment of IGST done at the time of filing of September 2018 GSTR-3B is also taken on record by the Id. Adjudicating authority in its SCN in Form RFD-o8 and no dispute in the same has been alleged by the Id. adjudicating authority either in the SCN or the order. Hence, the same has been accepted by the Id. adjudicating authority also. 5. That it is pertinent to produce the extracts of the law relevant for the present case: SECTION 16. Zero rated supply. - (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 sub-section (5) of section 17 of the Central Goods and Services Tax Act, credit of input tax may be availed for making zero-rated 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 ....

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....pellate 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 provisionally under this Act or the rules made thereunder, the date of adjustment of tax after the final assessment thereof; (g) in the case of a person, other than the supplier, the date of receipt of goods or services or both by such person; and (h) in any other case, the date of payment of tax. That from the combined reading of the above provisions, it is ample clear that supply of goods to SEZ unit is considered as zero-rated supply and the supplier making zero rated supply is eligible to claim refund of the IGST paid on the same within two years from the date of payment of IGST. That it is also paramount here to note that the relevant date for the supplies made to SEZ unit on payment of taxes has been prescribed under the residual part of ....

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....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 sub-section (5) of section 17 of the Central Goods and Services Tax Act, credit of input tax may be availed for making zero-rated 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 unutilized 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 goods or services or both supplied, in accordance with the provisions of section 54 of the Central Goods and Services Tax Act or the rules made thereunder. Section 54(1) of the Act provides- "CHAPTER....

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.... (g) in the case of a person, other than the supplier, the date of receipt of goods or services or both by such person; and (h) in any other case, the date of payment of tax. "CHAPTER X REFUND As per rule 89 of the CGST Rules, 2017- Application for refund of tax, interest, penalty, fees or any other amount. (1) Any person, except the persons covered under notification issued under section 55, claiming refund of any tax, interest, penalty, fees or any other amount paid by him, other than refund of integrated tax paid on goods exported out of India, may file an application electronically in FORM GST RFD- 01* through the common portal, either directly or through a Facilitation Centre notified by the Commissioner : Provided that any claim for refund relating to balance in the electronic cash ledger in accordance with the provisions of sub-section (6) of section 49 may be made through the return furnished for the relevant tax period in FORM GSTR-3* or FORM GSTR-4* or FORM GSTR-7 as the case may be : Provided further that in respect of supplies to a Special Economic Zone unit or a Special Economic Zone developer, the application for refund shall be filed by the - ....

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.... is 17.10.2020, hence the refund is time barred. 9. In this context, I find that the contention of revenue is legally correct and justified. There is a provision provided under Section 16 of IGST Act, 2017 wherein the definition of zero rated supply has been given. As per the said provision 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. From above definition it is amply clear that the supply made to SEZ shall be treated as a zero rated supply accordingly, for filing of refund in this case the relevant date would be taken as per clause (a) of explanation 2 (2) of sub section (14) of Section 54 of CGST Act,2017. 10. Further, I also observed from the Tax Invoice No.027/2017-2018 dated 25.07.2017 issued/raised by the supplier i.e. M/s S.R. Enterprises, Jaipur the said goods has been received/supplied on 26.07.2017 in SEZ. As per above legal provisions as discussed above, the relevant date in the instant case for calculating relevant date for filing of refund claim shall be ....