TaxTMI 
TaxTMI 
2022 (10) TMI 1000
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.....11.2019 passed by the Assistant Commissioner, CGST & Central Excise, respondent no.3 herein, the refund claim of the petitioner came to be rejected on the ground that it was barred by limitation in terms of Explanation (2) (c) (1) of Section 54 of the Central Goods & Services Tax Act, 2017. Further prayer is made to direct the respondents to pay the entire refund claim. 3. The petitioner no.1 is engaged in the business of trading and clearance of finished excisable goods, namely analytical instruments and consumables such as mass spectroscopy, standard and impurities machinery, laboratory products, force scientific columns, cole parmer, modular gas generators, etc., which are mainly used by the pharmaceutical companies. 3.1 The petitioner supplied finished goods to pharmaceutical companies located in Special Economic Zone (SEZ) issuing tax invoices. It was stated that the tax invoices were examined and admitted by the competent officer of the Special Economic Zone. The supply of the goods by the petitioner was zero-rated supply within the purview of Section 16 of the Integrated Goods and Services Tax Act, 2017 (hereinafter referred to as "IGST Act"). As per the said provisio....
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.... ledger on account of technical issue, but did not dispute the eligibility of recredit of the amount. The petitioner lodged its complaint on 04.03.2020 to Saksham Seva Help Desk, as suggested by respondent no.3 itself but in vain despite reminders. The petitioner approached this Court by filing the present petition as despite the petitioner having continuously followed-up with the respondents since last one year, there had been no response and re-credit was not given. 4. The petition was contested by respondents no. 1 to 3, They filed affidavit-in-reply, wherein it was contended inter alia that the refund claim of Rs.3,48,497/- of the petitioner was filed under section 54 of the CGST Act. It was contended that as per the procedure laid down in the Circular dated 15.11.2017, the application was required to be filed. It was further stated that the petitioner generated ARN number for the said refund claim on 20.12.2018 by filing application in FORM RFD-01A and relevant documents as required by the said circular. The printout of the application along with relevant documents was submitted by the petitioner to the office of respondents on 17.10.2019. 4.1 According to the respondent....
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....intout of application for refund uploaded on common portal. The stand of the respondent is that the circular dated 15.11.2017 prescribes the procedure to file application physically and the actual date of filing of the refund claim would be counted from the said date, when physical tendering of the application/documents happened, and not when the application was entered into the portal and acknowledged. 5.1 The statutory provisions attracting in the controversy may be looked at. Section 54 of the CGST Act provides mechanism for refund of any tax or interest. It reads as under, "Section 54. Refund of Tax- (1) 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: Provided that a registered person, claiming refund of any balance in the electronic cash ledger in accordance with the provisions of subsection (6) of section 49, may claim such refund in such from and manner as may be prescribed. Provided that a registered person, claiming refund of any balance in the electro....
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....d is less than two lakh rupees, it shall not be necessary for the applicant to furnish any documentary and other evidences but he may file a declaration, based on the documentary or other evidences available with him, certifying that the incidence of such tax and interest had not been passed on to any other person. (5) If, on receipt of any such application, the proper officer is satisfied that the whole or part of the amount claimed as refund is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund referred to in section 57. (6) Notwithstanding anything contained in subsection(5)...... (7) The proper officer shall issue the order under.... (8) Notwithstanding anything contained in subsection (5), the refundable amount shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to- (a) .... (b) .... (c) .... (d) .... (e) .... (f) .... 4(8A) The Government may disburse the refund of the State tax in such manner as may be prescribed. (9) Notwithstanding anything to the contrary-contained......
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.... 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." 5.1.1 Sub-section (1) of Section 54 of the CGST ACt 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. Prior to the insertion of Explanation (2) (ba) by the Finance Act, 2022, the relevant date in the case of goods exported out of India by land, the date on which such goods pass the frontier. In the case of services exported out of India, the date of receipt of payment in convertible foreign exchange or in Indian....
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....herefore time barred, counted from the relevant date. 5.6 Now, it is not in dispute that the petitioners filed their refund application in the common portal on 28.12.2018 and ARN was generated. Until the application with documents were physically submitted on 17.10.2019, the respondents did not do anything on the application, which was filed as per the mechanism adopted by the respondents, on 28.12.2018. It is not in dispute that the refund claim of the petitioner otherwise satisfied all requirements of Section 54 of the CGST Act and the attendant Rules and the petitioner was eligible to seek refund. The refund claim was however considered as time barred stating that the application was liable to be treated to have been filed on 17.10.2019 and not on 28.12.2018. 5.7 The respondents have relied on Circular dated 15.11.2017, which stipulates procedure to refund of IGST to Special Economic Zone developer or a Special Economic Zone unit. Relevant paragraph 2.3 of the said circular which is pressed into service to justify the rejection of the claim for refund is extracted as under, "2.3 The application for refund of integrated tax paid on zero-rated supply of goods to a S....