TaxTMI 
TaxTMI 
2023 (2) TMI 815
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....s and Service Tax Act, 2017 (for short 'the Act'). 2. The brief matrix of the present case is that the petitioner filed CWP No.8108 of 2021 challenging the order dated 19.2.2021, issued by the Additional Commissioner(Appeals), GST, praying for a refund of Central Goods and Services Tax (for short 'CGST') and State Goods and Services Tax (for short 'SGST') amounting to Rs.108.41 crores approximately wrongly paid on 5.4.2019 (for the disputed period, i.e. April 2018 to December 2018) more than the tax due under Section 77 of the Act. At that time, the GST regime had kicked in and the petitioner had one Registration Number for Service Tax which continued for the initial period under the new GST regime and thereafter, the petitioner obtained separate Registration Numbers in all 28 States. However, during the initial stage, the complete break-up of all notified transactions was not available to the petitioner and in the absence thereof for the period from April 2018 to December 2018, the petitioner paid CGST and SGST of Rs.108 Crores approximately treating the transactions to be intra-State sales. The supply was reported under GSTR1 and 3-B as a Business to Customer (....
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....gned order has held that the period of 60 days prescribed for calculating the interest liability shall be reckoned from 28.10.2021, the date on which the petitioner filed an online refund application for seeking a refund of the interest of Rs.15,68,26,554/- along with the principal amount of Rs.108.41 crores under the judgment dated 8.10.2021 of this Court. Learned counsel for the petitioner further argued that the interest shall be reckoned after the expiry of 60 days from the date of filing of the original application, i.e. 5.4.2019, as per the rates notified under Section 56 of the Act and an explanation of Section 56 of Act provides that the once the order passed by proper Officer rejecting the refund claim has been set aside by any Court, then it will be deemed that the said order is passed by a proper officer and the interest liability shall be calculated from the date of the original calculation and the petitioner had to file a fresh application as the Online GST portal does not allow refund of the principal amount along with interest unless a fresh application is filed. Learned counsel, in support of his contentions, relies upon the judgment passed by the Hon'ble Apex Co....
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....rejected vide impugned order dated 22.12.2021 (Annexure P-1). A perusal of the judgement dated 8.10.2021 passed in CWP No.8108 of 2021 filed by the petitioner shows that the same was allowed and the respondents were directed for a refund of Rs.108.41 crores along with applicable interest within a period of 1 month. The Court had observed that additional amount of tax which was paid by the petitioner was the additional amount of Rs.108.41 crores approximately and the same was paid on the requirement of the respondents only. This Court specifically observed that the said money had been lying with the respondents for 2½ years and consequently, a direction was issued to the respondents for a refund of Rs.108 crores approximately along with applicable interest which had been rejected by the respondents vide impugned order dated 22.12.2021. For the proper adjudication of the matter and to resolve the issue about payment of interest, Section 54 and Section 56 of the CGST Act are reproduced hereinbelow:- "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 applicatio....
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.... refund is claimed was collected from, or paid by, him and the incidence of such tax and interest had not been passed on to any other person: Provided that where the amount claimed as refund 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 sub-section (5), the proper officer may, in the case of any claim for refund on account of zero-rated supply of goods or services or both made by registered persons, other than such category of registered persons as may be notified by the Government on the recommendations of the Council, refund on a provisional basis, ninety per cent. of the total amount so ....
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....y tax, interest, penalty, fee or any other amount which the taxable person is liable to pay but which remains unpaid under this Act or under the existing law. Explanation.-- For the purposes of this sub-section, the expression "specified date" shall mean the last date for filing an appeal under this Act. (11) Where an order giving rise to a refund is the subject matter of an appeal or further proceedings or where any other proceedings under this Act is pending and the Commissioner is of the opinion that grant of such refund is likely to adversely affect the revenue in the said appeal or other proceedings on account of malfeasance or fraud committed, he may, after giving the taxable person an opportunity of being heard, withhold the refund till such time as he may determine. (12) Where a refund is withheld under sub-section (11), the taxable person shall, notwithstanding anything contained in section 56, be entitled to interest at such rate not exceeding six per cent. as may be notified on the recommendations of the Council, if as a result of the appeal or further proceedings he becomes entitled to refund. (13) Notwithstanding anything to the cont....
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....ipt of payment in convertible foreign exchange (or in Indian Rupees wherever permitted by the Reserve Bank of India], where the supply of services had been completed prior to the receipt of such payment; or (ii) issue of invoice, where payment for the services had been received in advance prior to the date of issue of 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 ro subsection (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. "Section 5....
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.... application before the Court for an extension of time for compliance with the judgment dated 8.10.2021 which is annexed as Annexure P-14. It is also an admitted position that this Court had allowed the writ petition and directed the respondents to refund the amount along with interest and the said order has also attained finality in the absence of any challenge to the same, as nothing has been brought to the notice of this Court, neither by the petitioner nor by the respondents. 10. Now the actual question remains whether, in compliance with the judgement dated 8.10.2021, the order passed by respondent No.2 vide Annexure P-1 dated 22.12.2021, is contrary to and violative of directions issued by this Court about payment of interest. Given the judgement passed by this Court on 8.10.2021, the respondents' reliance upon explanation is not well founded and the said explanation does not deal with the period for which the interest is to be paid. The arguments raised by the petitioner are supported by the judgment of the Hon'ble Supreme Court in Ranbaxy's case (supra). In that case, Section 11B and 11BB of the Central Excise Act, 1944 fell for consideration. Section 11B and Section....
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....icant, if such amount is relatable to - (a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (b) unspent advance deposits lying in balance in the applicant's account current maintained with the [Principal Commissioner of Central Excise or Commissioner of Central Excise]; (c) refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification issued, under this Act; (d) the [duty of excise or interest, if any paid on such duty] borne by the manufacturer, if he had not passed on the incidence of such [duty and interest, if any, paid on such duty] to any other person; (e) the [duty of excise and interest, if any paid on such duty] borne by the buyer, if he had not passed on the incidence of such [duty and interest, if any, paid on such duty] to any other person; (f) the [duty of excise and interest, if any paid on such duty] borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify : Provided furt....
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....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; (b) in the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory for the purposes aforesaid; (c) in the case of goods to which banderols are required to be affixed if removed for home consumption but not so required when exported outside India, if returned to a factory after having been removed from such factory for export out of India, the date of entry into the factory; (d) in a case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by notification in the Official Gazette in full discharge of his liability for the duty leviable on his production of certain goods, if after the manufacturer has made the payment on the basis of such rate for any period but before the expiry of that period such rate is reduced, the date of such reduction; [(e) in the case of a person....
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..... The judgment relied upon by the petitioner supports the petitioner's case. In that event, the petitioner's submissions are upheld given what has been stated earlier. Section 54 and 56 of the Act mandates the payment of interest from the date of application whereas the plea of the respondents about the period in which the application for payment of interest was made and the same has been processed within 60 days ,hence the petitioner is not liable for the interest is not tenable as the respondents in any case, does not suffer any loss as money lain with the respondents for the continuous period of two and a half years, in fact even before the date of filing of the application for a refund under Section 56 of the Act and the time taken for a refund of the money in terms of the judgment dated 8/10/2021 is unreasonable. The petitioner was entitled to a refund as well as interest amount vide judgment dated 8.10.2021, wherein a specific direction was issued for a refund of Rs.108 crores approximately which was deposited by the petitioner towards CGST+SGST along with applicable interest within one month. Unfortunately, this has not been done and the respondents have no justification....