TaxTMI 
TaxTMI 
2021 (8) TMI 843
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....nbsp;Pt.I dated 12.01.2021 October- 2018 to November- 2018 Refund rejected Rs. 2,85,404/-. 2. BRIEF FACTS OF THE CASE: 2.1 The appellant having GSTIN No.08ASEPD1695A1Z4 has filed refund application vide ARN No.AA081120029134V dated 19.11.2020 under Section 54 of CGST Act, 2017 in respect of ITC on export of goods and services without payment of Tax for the period and amount are mentioned in Para (1) above in column No. (4) & (5). 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 29.12.2020 on account of refund claim of ITC to the extent of Rs. 2,85,084/- out of Rs. 3,73,133/- of IGST pertaining from 01.10.2018 to 19.11.2018 appeared to be found Time Barred as ARN date 19.11.2020 which is more than 2 years of prescribed time period and thus hit by time limitation clause, in terms of Section 54(1) of the CGST Act, 2017. 2.3 Further, after consideration reply of the appellant, the adjudicating authority has rejected the refund claim vide RFD-06 dated 12.01.2021 on the ground that "Refund claim filed by the appellant is hit by limitation and found to be Time B....
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.... V(GST-H) 30/Misc Refund/2019/Pt 1 dated 29/12/2020 was issued rejecting the refund claim amounting Rs. 2,85,084/- for the period 01.10.2018 to 19.11.2018 stating that the said is barred by limitation. In the context of the above factual background it is submitted that the application of refund was submitted on the GSTN portal along with all the required documents. The Documents enclosed with the Refund application RFD-01 as reflected in the draft application is attached. The statutory provision as contained in Chapter X of the CGST Rules 2017 prescribes the procedure to be followed for granting refund under Section 54. Rule 89 provides the procedure to file the application for refund. The relevant procedures are produced hereunder- 89. 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 Facilitat....
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....ness in the documents is unfair, unlawful and against the provisions of the law and hence loss should not be caused to the appellant due to the mistake of department. Without prejudice to above submission, The subsequent application for refund in Form RFD-01 was filed on the portal on 19.11.2020. The said application was acknowledged by the department on 26.11.2020. Section 54(6) read with Rule 91 requires that the 90% of the amount of refund claimed shall be sanctioned to the applicant within 15 days of the filing of the application. No such provisional refund was granted to the appellant as per legal provision of the GST statutes. In fact the application was kept pending for more than a month period without passing any order or raising any deficiency. Thus the department has not adhered to the laid down procedure of grant of refund as prescribed under the law. Therefore the issue of the first deficiency memo as well as the impugned notice both are unlawful and the impugned order should be set aside. REFUND IS NOT BARRED BY LIMITATION 18. Without prejudice to above submission, the appellant wish to submit that the impugned Order made a serious error in rejection of the refund....
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....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 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. Department considered the date of Export Invoice for calculating the relevant date for the purpose of refund application. Here it is important to mention here that the Relevant date for the purpose of section 54 as defined in the explanation (2)(a)(ii) referred herein above is the date when the goods passes the frontier of India. It need to be understand that the there is difference....
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....excisable materials used in the manufacture of such goods, - (i) if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, or (ii) if the goods are exported by land, the date on which such goods pass the frontier, or (iii) if the goods are exported by post, the date of despatch of goods by the Post Office concerned to a place outside India; Refund - Limitation - Relevant date - Service Tax paid on Port services used for export of goods - Relevant date for computing one year limitation period to be the date when goods loaded for exportation under Section 51 of Customs Act. 1962 - Section 11E3 of Central Excise Act, 1944 made applicable to Service Tax vide Section 83 of Finance Act, 1994 and Notification No. 41/2007-S.T. From -above -discussion a-nd submission it is crystal clear that in no case the date of Invoice or date of shipping bill can be considered as the relevant date. Thus the rejection of refund claims on the basis of the date of invoice instead of date when goods left India for export is unlawful and therefore against the provisions of law. ....
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....ES LTD. Versus C.C. EX, MEERUT-II 2017 (4) G.S.T.L. 395 (Tri. - All.) The appellant has cited following case laws in their defence: ANCIPLAST PVT. LTD. Versus C.C. EX., AHMEDABAD 2010 (19) S.T.R. 838 (Tri. - Ahmd.) UNITED PHOSPHORUS LTD. Versus UNION OF INDIA 2005 (184) E.L.T. 240 (Guj.) CHENNAI PETROLEUM CORPN. LTD. Versus C. GST & C. EX.. CHENNAI 2019 (369) E.L.T. 1636 (Tri. - Chennai) BALMER LAWRIE & CO. LTD. Versus C.C.EX., KOLKATA-VI 2015 (315) E.L.T. 100 (Tri. - Kolkata) C.C. EX., DELHI-I Versus ARYA EXPORTS AND INDUSTRIES 2005 (192) E.L.T. 89 (Del.) A.P.Pager Mills Ltd 1991 (54) E.L.T 293 COMMISSIONER OF C. EX., DELHI Versus ARYA EXPORTS AND INDUSTRIES 2005 (192) E.L.T. 89 (Del.) 4. Personal hearing in virtual mode through video conference was held on 08.07.2021 wherein Shri Manmohan Mahipal, Authorized Representative of the appellant has attended the personal hearing. During the personal hearing he reiterated the grounds of appeal and explained the same in details. During personal hearing it was asked to Authorized Representative of the appellant to provide the details of shipping bills, invoices and date ....
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....plication and he had submitted all required documents along with the refund application through GSTN portal itself filed on 02.11.2020. In support of his contention he has also submitted the screen shot of draft RFD-01 application. In respect of the said contention, on going through the said RFD-03 (deficiency memo) received from the concerned division I observed that while scrutiny of the refund application, the proper officer found the deficiency as the all supporting documents were not attached/ uploaded with the said refund application filed on 02.11.2020. Accordingly, the said deficiency memo was issued and the appellant was also directed to file fresh refund application after uploading all the documents. Further, I find the said deficiency memo was issued within 15 days of filing of refund application as prescribed under sub rule (2) of Rule 90 of CGST Rules, 2017. In view of above factual position, I undoubtedly find that the original refund application of the appellant was not filed with all relevant documents as prescribed under Section 54 (4) of CGST Act, 2017 read with Rule 89 (2) of CGST Rules, ....
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....was not accepted, as the refund application filed after the issuance of deficiency memo is considered a fresh application in terms of Section 54(1) of CGST Act 2017 which provides that: "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 the relevant date in such form and manner as may be prescribed" In the line of above provisions, further Rule 89(2) of CGST Rules, 2017 prescribes the documents which should be accompanied with refund application/RFD-01. Since, the claimant filed fresh application on 19.11.2020 with prescribed documents. Therefore, the actual date of refund filed was taken 19.11.2020 while processing refund application. Accordingly, refund claim against the shipping bill on or before 19.11.2018 found inadmissible. Para 18 to 32:- The claimant has contended that the refund was not time barred and the sanctioning authority failed to understand the provisions of Refund laid down in the Section 54 of the CGST Act, 2017. However, on going through the provisions of Section 54 ....
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....unded Rs. 52,049/- vide Order dated 12.01.2021. Since, the applicant had already got refund Rs. 52049/-, so, the admissible balance refund amount is Rs. 1,31,805/- (183854-52049). 8 In view of the comments submitted by the jurisdictional Dy/Assistant Commissioner and provisions provided under sub- rule (3) of Rule 90 of CGST Rules, 2017 I am in agreement with the view of the revenue that the date of filing of fresh refund application in the instant case was correctly reckoned as 19.11.2020 as the refund claim was filed afresh, after rectification of deficiency issued in Deficiency Memo. Hence, I do not agree with the appellant contention that the initial date of filing of refund application should be taken for the purpose of calculating the period of two years from the relevant date. Further, I find that relevant date for the purpose of calculating the refund claim would be arrived as per provisions of Section 54(14) Explanation 2 (a) (ii) of CGST Act, 2017 as under: Section 54(14) Explanation (2) "relevant date" means- (a) in the case of goods exported out of India where a refund of tax paid is avai....