AI Drafter 
TaxTMI 
TaxTMI 
2023 (7) TMI 938
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....re- "J"), with all consequential reliefs and benefits to the Petitioner; (B) That Your Lordships may be pleased to issue a Writ of Mandamus, or any other appropriate writ, order or direction, directing the Respondent No. 2 to consider, decide and sanction all the supplementary claims filed by the Petitioner as listed in Annexure- "F". (C)Pending hearing and final disposal of the present petition, Your Lordships may be pleased to direct Respondent No. 2 to forthwith decide the Petitioner's supplementary refund claims on merits, on the terms and conditions that may be deemed fit by this Hon'ble Court. (D)An ex-parte ad-interim relief in terms of Para 17(C) above may kindly be granted. (E)Any other and further relief that may be deemed fit in the facts and circumstances of the case may also please be granted." 2. Looking to the issue involved in the present petition, learned advocates appearing for the parties jointly requested that this petition be finally disposed of at admission stage. Hence, Rule. Learned AGP Ms. Shrunjal Shah waives service of notice of Rule qua respondents. 3. The brief facts leading to filing of the present petition are....
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.... 3.4. The petitioner has further stated that the present case is for the petitioner's refund claims of unutilized ITC used in making zero-rated supply of goods during the period of 11 months in Financial Year 2020-2021 and 2021-2022. It is further stated that the petitioner has been legally entitled to refund of a sum aggregating to Rs. 1,10,67,67,172/- for these 11 months, however, the petitioner erroneously lodged claims for a lower amount of Rs. 1,00,47,38,439/- due to inadvertent arithmetical error of their employee and therefore the respondents have sanctioned and paid refund aggregating to Rs. 1,00,47,38,439/-. It is further stated that when the petitioner realized the error and lodged supplementary refund claims for the left out amount of refund being Rs. 10,20,28,733/-, the respondents have refused to sanction and pay such refund on a specious basis that the category under which such supplementary claims were lodged was not applicable in the case of the petitioner. The petitioner has, therefore, filed the present petition. 4. Heard learned advocate Mr. Paresh M. Dave for the petitioner and learned AGP Ms. Shrunjal Shah for the respondents. 5. Learned advocate for t....
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....ocate for the petitioner thereafter submitted that respondent No. 2 issued two notices for rejecting the supplementary refund applications for July, 2020 and September, 2020 on the ground that "any other" category facilitated the tax payer to file a refund claim of a category other than listed in portal and the refund application made by the petitioner was not valid under "any other" category. It is submitted that petitioner filed reply on 10.08.2022 and explained the background in which the supplementary applications for refund had to be filed. The petitioners have also explained why "any other" category was mentioned in the refund application, and that the refund claim only of that amount which was left out while making the application with incorrect calculations. Two separate replies were also filed. At this stage, it is submitted that the respondent No. 2 passed orders and uploaded the same on common portal on 26.08.2022 without giving opportunity of hearing to the petitioner. 5.4. Learned advocate referred the said orders and submitted that from the orders passed by the respondents, it is clear that the respondent has reproduced the notices but the submissions made by the p....
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....shnu Aroma Pouching Pvt. Ltd. v. Union of India, reported in 2020(38) GSTL 289 (Guj.); 5. Order dated 21.07.2022 passed by this Court in Special Civil Application No. 17424 of 2021 in the case of M/s. Stitchwell Garments v. Union of India. 6. On the other hand, learned AGP Ms. Shrunjal Shah has opposed this petition. Learned AGP has referred the averments made in the affidavit-in-reply filed on behalf of respondent No. 2. It is submitted that the common portal calculates the refundable amount as per the formula and under Rule 89(4) of the CGST Rules. Learned AGP referred para 10 of the reply and submitted that as per the refund application submitted by the petitioner for July, 2020, the maximum refund amount that could be claimed by the petitioner as per statement 3A of RFD-01 was Rs. 5,57,57,863/- and the amount eligible for refund was Rs. 2,91,60,705/-. It is submitted that the petitioner could claim a higher amount of refund up to a maximum of Rs. 5,57,57,863/-. However, the petitioner only claimed Rs. 2,91,60,705/- as refund by its own, and therefore, the petitioner is responsible for the less amount of refund claimed. Similarly, it is pointed out that for the month....
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....(3) of the IGST Act, the petitioner is entitled to claim refund of such unutilized ITC. Further, under Rule 89(4) of the CGST Rules, the Central Government has provided for a formula for calculating the amount of refund of unutilized ITC availed in respect of inputs and input services used in making zero-rated supplies of goods and the petitioner has been claiming refund of such unutilized ITC in accordance with this formula on regular basis. 8. The present is a case for the petitioner's refund claims of unutilized ITC used in making zero-rated supply of goods during the period of 11 months in Financial Year 2020-2021 and 2021-2022. Learned advocate for the petitioner submitted that petitioner has been legally entitled to refund of a sum aggregating to Rs. 1,10,67,67,172/- for these 11 months, however, the petitioner erroneously lodged claims for a lower amount of Rs. 1,00,47,38,439/- due to inadvertent arithmetical error of the employee of the petitioner. It is submitted that the respondents have sanctioned and paid refund aggregating to Rs. 1,00,47,38,439/-. It is the case of the petitioner that when the petitioners realized the error, they have lodged supplementary refund cla....
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.... 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 dispatch of goods by the Post Office concerned to a place outside India; (b) in the case of supply of goods regarded as deemed exports where a refund of tax paid is available in respect of the goods, the date on which the return relating to such deemed exports is furnished; 6[(ba) in case of zero-rated supply of goods or services or both to a Special Economic Zone developer or a Special Economic Zone unit where a refund of tax paid is available in respect of such supplies themselves, or as the case may be, the inputs or input services used in such supplies, the due date for furnishing of return under section 39 in respect of such supplies; ] (c) in the case of services exported out of India where a refund of tax paid is available in respect of services themselves or, as the case may be, the inputs or input services used in such services, the date of-- (i) receipt of payment in convertible foreign exchange, 7[or in Indian rupees wherever p....
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.... Act within thirty days after the expiry of the time limit prescribed under the Foreign Exchange Management Act, 1999 (42 of 1999) for receipt of foreign exchange remittances, in such manner as may be prescribed. (4) The Government may, on the recommendation of the Council, and subject to such conditions, safeguards and procedures, by notification, specify- (i) a class of persons who may make zero rated supply on payment of integrated tax and claim refund of the tax so paid; (ii) a class of goods or services which may be exported on payment of integrated tax and the supplier of such goods or services may claim the refund of tax so paid.] 9.2. Now, we would like to refer to Sub-Rule (4) of Rule 89 of the CGST Rules, which reads as under: "89: Application for Refund of Tax, Interest, Penalty, Fees or any Other Amount. xxx xxx xxx (4) In the case of zero-rated supply of goods or services or both without payment of tax under bond or letter of undertaking in accordance with the provisions of sub-section (3) of section 16 of the Integrated Goods and Services Tax Act, 2017 (13 of 2017), refund of input tax credit shall be granted as....
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....missible. In the present case, the respondents have not disputed that the maximum refund that is admissible is Rs. 1,00,47,38,439 and not the amount of Rs. 1,10,67,67,172/-. However, the stand of the respondent is that the petitioner is responsible for the error committed by the employee of the petitioner in claiming the refund of lower amount than the maximum admissible amount. 11. From the record, it appears that out of Rs. 1,10,67,67,172/-, the respondent has already granted refund for an amount of Rs. 1,00,47,38,439/-, and therefore, the dispute is with regard to refund of an amount of Rs. 10,20,28,733/-. When the petitioner realized the arithmetical error committed while submitting the applications for refund for particular months, supplementary applications have been made for getting the refund of aforesaid amount of Rs. 10,20,28,733/- within statutory period laid down under Section 54(1) of the CGST Act. It is the case of the petitioner that while showing the category of refund application, the petitioner has shown "any other" as the category because refund applications for these 11 months had already been made under Clause 7(c) i.e. accumulated ITC category for export of....
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....revenues of the States. Complex balances have had to be drawn so as to accommodate the concerns of the states before bringing them within the umbrella of GST. These aspects must be borne in mind while assessing the jurisprudential vision and the economic rationale for GST legislation. But abstract doctrine cannot be a ground for the Court to undertake the task of redrawing the text or context of a statutory provision. This is clearly an area of law where judicial interpretation cannot be ahead of policy making. Fiscal policy ought not be dictated through the judgments of the PART F High Courts or this Court. For it is not the function of the Court in the fiscal arena to compel Parliament to go further and to do more by, for instance, expanding the coverage of the legislation (to liquor, stamp duty and petroleum) or to bring in uniformity of rates. This would constitute an impermissible judicial encroachment on legislative power. Likewise, when the first proviso to Section 54(3) has provided for a restriction on the entitlement to refund it would be impermissible for the Court to redraw the boundaries or to expand the provision for refund beyond what the legislature has provided. If....
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....T Council to reconsider the formula and take a policy decision regarding the same." 12.1. In the aforesaid decision, the Hon'ble Supreme Court has an occasion to deal with the issue where the High Court has expanded the provision for refund beyond what the legislature has provided, and therefore, the aforesaid decision would not render any assistance to learned AGP in the facts of the present case. 13. Now, we would like to refer to the decisions relied on by the learned advocate appearing for the petitioner. In the case of Bombardier Transportation India Pvt. Ltd. (supra), the Division Bench of this Court observed in para 23 and 25 as under: "23. The writ-applicant submits that as per its understanding, the EDI system, which is an electronic system developed and managed by the respondent no. 3 with an objective to digitalize transmission of shipping bills between Respondents, suffers from lacunae that it does not permit amendment, which is specifically permitted in terms of Section 149 of the Customs Act, 1961, to be carried electronically through EDI system. It is a settled law that the benefit which otherwise a person is entitled to once the substantive conditions....
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....ohammad Bakar El- Edroos (Dead) By Lrs. Vs. Abdulhabib Hasan Arab & Ors. [(1998) 4 SCC 343], held that procedure cannot operate to defeat the ends of justice, it must stand to the aid of justice, "8. A procedural law is always in aid of justice, not in contradiction or to defeat the very object which is sought to be achieved. A procedural law is always subservient to the substantive law. Nothing can be given by a procedural law what is not sought to be given by a substantive law and nothing can be taken away be the procedural law what is given by the substantive law." 5.4 Even if the petitioner had entered wrong scheme code, it was only an irregularity and not illegality. In Solanki Parvatikumari Rameshbhai Vs. State of Gujarat being Special Civil Application No. 22981 of 2017, Single Judge of this Court explained the differentiation between illegality and irregularity, "5.2 Law conceives a clear differentiation between illegality and irregularity. This nice distinction brings home the case of the petitioner. An illegality is something which amounts to substantial failure in compliance of requirement. It denotes such breach of rule or requirement which al....