TaxTMI 
TaxTMI 
2021 (7) TMI 1213
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....200414882, dated 23-4-2020 Appellant has filed refund claim under Section 54 of the CGST Act, 2017 of Rs. 51,312/- for the period Sept., 2017 in respect of Tax paid on an Intra-State Supply which is subsequently held to be Inter-State supply & vice versa. Refund rejected Rs. 51,312/- (IGST) Total Rs. 51,312/- 2 APPL/JPR/ CGST/JP/40/VII/2020/ ZU0804200414937, dated 23-4-2020 Appellant has filed refund clam under Section 54 of the CGST Act, 2017 of Rs. 49,578/- for the period July, 2017 in respect of Tax paid on an Intra-State Supply which is subsequently held to be Inter-State supply & vice versa. Refund rejected Rs. 49,578/- (IGST) Total Rs. 49,578/-. 3 APPL/JPR/ CGST/JP/41/VII/2020/ ZO0804200414960, dated 23-4-2020 Appellant has filed refund claim under Section 54 of the CGST Act, 2017 of Rs. 87,006/- for the period Aug., 2017 in respect of Tax paid on an Intra-State Supply which is subsequently held to be Inter-State supply & vice versa. Refund rejected Rs. 87,006/- (IGST) Total Rs. 87,006/-. 4 APPL/JPR/ CGST/JP/43/VII/2020/ ZO0804200415171, dated 23-4-2020 Appellant has filed refund claim under Section 54 of the CGST Act, 2017 of R....
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....ice. That apart from said objection there is no other ground in the notice or the impugned order • that that appellant in the month of Dec., 2019 tried to file Applications for refund under the category of "Refund on Tax paid on an intra-State Supply which is subsequently held to be inter-State Supply and vice versa" in accordance with Section 77. • that applicant keeps trying from Dec., 2019 to Mar., 2020 to file application but could not file the application under the correct category due to glitch in GSTN portal issue. The applicant, in the face of technical glitch faced with GSTN as an abundant caution to safeguard the refund, filed application in the month of March, 2020 under the category of "Refund of Excess payment of tax" instead of under the category of "intra-State Supply which is subsequently held to be inter-State Supply and vice versa" • that appellant reproduce below relevant Sections of 54 of CGST Act, 2017 : Section 54 - Refund of tax Sub.S. - 1 of 54 - Any person claiming refund of any tax and interest, if any, paid on such tax or any other amount paid by him, may make an application before the expiry of two years from ....
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....om the above Section of 77 read with Section 54 of CGST Act, 2017 that the appellant is eligible to file refund application for taxes paid inadvertently under the head of IGST instead of CGST & SGST. • that without prejudice to the submissions made in the foregoing paras, it is submitted that the notices issued by the department had, in the very first place, proceeded on the wrong premise. The notice could not have been issued on the issue of time bar of the refund claim filed by the appellant. • that refund of "tax paid on an intra-State supply which is subsequently held to be inter-State supply and vice versa (change of POS)" has been specifically provided in Rule 89(2)(j) of the CGST Rules, 2017 read with Table 7(j) of FORM GST RFD-01. • that the appellant had mentioned in reply to notice that while filing online refund application under Statement 06 of the FORM GST RFD-01, which is required to be submitted in terms of Rule 89(2)(j) of the CGST Rules, 2017 read with Table 7(j) of FORM GST RFD-01, the GSTN Portal didn't accept the application because of multiple technical and portal issues (Validation, Order No & Date etc.), consequently the....
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.... tax. It is pertinent to rote that the refund under Section 77 is not due simply on the ground that tax was paid in wrong head (as IGST instead of CGST and SGST). The refund of wrongly paid tax under Section 77 read with Section 54 is due only on payment of correct tax. Thus, the cause of action for claiming refund of wrongly paid tax arises only when the correct tax is paid. It is submitted that the relevant date under Section 54 for the purposes of Section 77 refund claims shall be the date of payment of tax which is correctly assessed. Violation of Principle of Natural Justice by Adjudicating Authority • that Appellant had submitted online refund claim application vide ANR No. AA080320032372T, dated 31-3-2020, AA080320032373R, dated 31-3-2020 ZO0804200092404, dated 6-4-2020, and AA080320032369G, dated 31-3-2020. Department issued notice No. ZT0804200099960, dated 22-4-2020, ZN0804200099782, dated 7-4-2020, ZO0804200099904, dated 7-4-2020 and ZT0804200427293, dated 8-4-2020 and informed appellant to appear for hearing on 15-4-2020. • that applicant is required to furnish reply to the notice issued in Form GST RFD-08) in Form GST RFD-09 online on....
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....fund claimed (F-G-H) 0 45425 -1 45425 Note : Total GST liability under the head CGST and SGST each amounts to Rs. 15,37,39,014/- as per GSTR-9 and GSTR-9C. However, total GST paid under the head CGST is Rs. 37,84,439/- and SGST Rs. 15,37,39,013/- (refer column 'E'). Accordingly, there is excess GST payment of Rs. 45,425/- under the head CGST. • Payment of tax under incorrect head is due to bona fide mistake • that the claim for refund in instant case is due to bona fide mistake as tax is paid under the head of .IGST instead under the head of CGST & SGST. Appellant observed this error in the month of Aug., 2018 and immediately amendment was made in GSTR-1 & said transactions were correctly disclosed as intra-State transaction & tax liability under the head of CGST & SGST was correctly disclosed. That details of invoices on which excess IGST is paid which is subsequently amended in GSTR-1 enclosed. • that while filing GSTR-9 & GSTR-9C for the period 2017-18, appellant had paid correct tax liability under CGST & SGST head, basis amendment made in GSTR-1 was paid by cash ledger vide DRC-03 - AD0812190015944, dated 18-12-2019 for Rs.....
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....t of Madras, in the case of M/s. 3E Infotech v. Customs [2018 (18) G.S.T.L. 410 (Mad).] has held that the application under Section 11B cannot be rejected on the ground that is bared by limitation, provided for under Section." • In the above judgment below mentioned case has been cited by the Hon'ble High Court of Madras, The Supreme Court of India, in the case of Union of India v. ITC Ltd. reported in (1993) Supp. IV CC 326 = 1993 (67) E.L.T. 3 (S.C.), while dealing with the question of refund of excess excise paid. Further, the appellant has also cited below mentioned case laws in their defence :- K.R.S. Enterprises (P.) Ltd. v. Commissioner of Service Tax, Bangalore, ST/22316/2014-DB UOI v. Kamalakshi Finance Corporation - AIR 1992 SC 711 = 1991 (55) E.L.T. 433 (S.C.), UOI v. Kamlakshi Finance Corporation - 1991(55) E.L.T. 433 (S.C.). 4. Personal Hearing in the case was held on 17-12-2020 through video conference, wherein, Shri Harish Chander Suri, Senior Menager (Indirect Tax) of the appellant, appeared for personal hearing through vi....
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....ecorded in writing; Provided that no such adjournment shall be granted for more than three times to a person during the proceedings. (6) The proper officer, in his order, shall set out the relevant facts and the oasis of decision. 8. Further, as per first proviso to sub-rule (3) of Rule 92 of CGST Rules, 2017 - Where the proper officer is satisfied, for reasons to be recorded in writing, that the whole or any part of the amount claimed as refund is not admissible or is not payable to the applicant, he shall issue a notice in FORM GST RFD-08 to the applicant, requiring him to furnish a reply in FORM GST RFD-09 within a period of fifteen days of the receipt of such notice and after considering the reply, make an order in FORM GST RFD-06 sanctioning the amount of refund in whole or part, or rejecting the said refund claim and the said order shall be made available to the applicant electronically and the provisions of sub-rule (1) shall, mutatis mutandis, apply to the extent refund is allowed : Provided that no application for refund shall be rejected without giving the applicant an opportunity of being heard. 9. Further, in Para 3.3 of CBEC, C....