TaxTMI 
TaxTMI 
TaxTMI 
2022 (5) TMI 860
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....ue a writ of mandamus or any other appropriate writ, order or direction, directing the Respondents to sanction entire refund claim with interest to the Petitioner because the Petitioner is eligible for refund under the provisions of Section 54 of the CGST Act, 2017 read with Rule 89 of the CGST Rules, 2017; (c) that this Hon'ble Court be pleased to issue a writ of mandamus or any other appropriate writ, order or direction ordering and directing the Respondent to give the petitioner an opportunity to present their case and to put forth their case / submissions and thereafter, pass a reasoned order; (d) for interim and ad-interim reliefs in terms of prayer (a), (b), (c) or (d) above; (e) for costs of this petition; (f) for such and other reliefs as the nature and circumstances of the case may require". 2. The facts giving rise to this litigation may be summarized as under: 2.1 The writ applicant is engaged in the business of manufacture / buying and selling of pharmaceutical products. It is not in dispute that the writ applicant is a Company situated outside India. 2.2 It appears from the materials on record that the writ applicant is involved in the development of Li....
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....ehemently submitted that the Authority concerned committed a serious error in turning down the claim for refund on the highly technical ground as stated in impugned communication dated 02.12.2020, Annexure A, page 22. Same reads thus: "02.02.2020 To, M/s. Ayana Pharma Ltd. Office No.321-B. Bhaveshwar Arcade, LBH Marg, Ghatkoper, Mumbai 400 086. Subject: Manual GST Refund Application Ref.: Your application dated 01.09.2020. In reference to above subject as well as reference, it is hereby informed that M/s. Ayana Pharma Ltd. has preferred application for GST refund of an amount of Rs.1,36,04,441/- for the period July, 2018 to June, 2019. All process of GST refund is online and you are required to file refund application online. The refund application submitted by you is manual. Therefore, your Original Application is returned so as to file online refund application. (C.L. Patel Deputy State Tax Commissioner, Circle -2, Ahmedabad." 4. Mr. Raichandani, learned counsel first invited our attention to the definition of the term "person" as defined under Section 2(84) of the Act. Learned counsel would submit that the term "person" would include any body cor....
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....d by the Principal Commissioner and has principally raised three fold contentions. First, that the writ applicant is not registered person under GST act, 2017 and therefore cannot claim refund electronically. He placed reliance upon sub- section 3 of section 16 of the IGST Act, 2017 as well as section 25 of the CGST Act, 2017 read with Rule 8 of the CGST Rules, 2017. He further submitted that the writ applicant being foreign based company has no PAN no. under the Income Tax Act which is required seeking registration under CGST Act and only a registered person can apply for electronic refund by following procedure provided under Rule 89(1) of the CGST Rules, 2017. Mr, Lodha further submitted that secondly, the supplier of services is entitled to file application for refund, as he is the registered person who has discharged tax. The Third limb of argument canvassed by the Union is that the services availed by the writ applicant cannot be termed as " export of services " , more particularly when the writ applicant has received services within the territorial limits of India and has therefore failed to comply with the requirement as provided under clause (iii) of subsection 6 of sectio....
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....en actually paid by the writ applicant company as the same was handed over to the "supplier of service", in terms of the contract. The same is borne out from the pleadings and is not specifically controverted by the respondent. For the foregoing reasons, we are of the view that the writ applicant being the real aggrieved party has locus to approach respondent authority seeking refund. So far as third limb of argument canvassed by the Union as regards " export of service" is concerned, the same has been raised for the first time before this Court. The writ applicant has responded by filing rejoinder affidavit. At this stage it would be appropriate to examine the relevant provisions under the Act, 2017. Section 2 provides for definitions of various expressions used in the IGST Act. Sub-section (6) is relevant. It defines 'export of services'. Since this definition is relevant it is extracted as under:- "2(6) 'export of services' means the supply of any service when,- (i) the supplier of service is located in India; (ii) the recipient of service is located outside India; (iii) the place of supply of service is outside India; (iv) the payment for such serv....
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....ion. Sub-section (1) says that subject to the provisions of sub-section (2) there shall be levied a tax called the integrated goods and services tax (IGST) on all inter-state supplies of goods or services or both except on the supply of alcoholic liquor for human consumption on the value determined under section 15 of the CGST Act and at such rate as may be notified by the central government on the recommendations of the GST Council and collected in such manner as may be prescribed and shall be paid by the taxable person. Sub-section (2) deals with integrated tax on the supply of petroleum, crude, high speed diesel, motor spirit, natural gas and aviation turbine fuel. That brings us to section 13 which deals with place of supply of services where location of supplier or location of recipient is outside India. Sub-section (1) gives the intent of section 13. It says that provisions of section 13 shall apply to determine the place of supply of services where the location of the recipient of services is outside India. Sub-section (2) provides that except the services specified in sub-sections (3) to (13), the place of supply of services shall be the location of the recipient of servic....
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....d indicate that the term "person" would include any body corporate incorporated by or under the laws of a country outside India. In such circumstances, first objection raised by Mr. Sharma, the learned AGP that the writ applicant being foreign Company could not have put forward its claim for refund of the tax, is not sustainable in law. 12. Section 54 of the Act referred to above provides that any person claiming refund of any tax and interest, if any, paid on such tax or any amount paid by him, can make an application before the expiry of two years from the relevant date in any such form and manner as may be prescribed. There is a proviso to sub-section 1 which provides that a registered person claiming refund of any balance in the electronic cash ledger in accordance with the provisions of sub-section 6 of Section 49 may also claim such refund in the return furnished under Section 39 in the manner as may be prescribed. 13. We now look into Rule 89. Rule 89 lays down the procedure for filing of an application for refund of tax, interest, penalty, fees or any other amount. Rule provides that any person except the person covered under the Notification issued under Section 55 claim....
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.... be made by the person eligible therefor electronically in FORM GST RFD-01 through the common portal, either directly or through a Facilitation Centre notified by the Commissioner. We need not refer to the other sub-rules of rule 89 and the provisos appended to some of such sub-rules as well as rules 90 to 97, because the same have not been shown to us to be relevant for the purpose of a decision on this writ petition. 8. Adverting to rule 97A, which is the sheet-anchor of the J.V.Salunke, PS 2-WP.7861.2021 petitioner's claim, we find that the same was inserted in the CGST Rules by a notification dated 15th November 2017 and is the last rule in Chapter X. Obviously, such insertion was in exercise of the rule-making power conferred on the Central Government by section 164 of the CGST Act. It would be appropriate to reproduce below rule 97A in its entirety for facility of convenience: - "97A. Manual filing and processing Notwithstanding anything contained in this Chapter, in respect of any process or procedure prescribed herein, any reference to electronic filing of an application, intimation, reply, declaration, statement or electronic issuance of a notice, order or certif....