TaxTMI 
TaxTMI 
2023 (12) TMI 1102
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.... Act, 2017 (hereafter 'the CGST Act'). 3. The petitioner appealed the said decision before the Appellate Authority, but was unsuccessful. The petitioner's appeal was rejected by an Order-in-Appeal dated 06.08.2021, which is also impugned in the present petition. The orders dated 11.03.2020 and 06.08.2021 are hereafter referred to as 'the impugned orders'. 4. Although, the petitioner has a statutory remedy of an appeal before the Tribunal, but he is unable to avail the same as the Tribunal has not been constituted. Factual Context 5. The petitioner is an individual and carries on the business of, inter alia, exporting goods and services under the name of its sole proprietorship concern, M/s Sethi Sons (India). 6. The petitioner had exported eight consignments during the period from July 2017 to March 2018. The first consignment was exported on 08.09.2017 under the export invoice dated 02.09.2017 and the Shipping Bill dated 04.09.2017. The last of the eight consignments was exported on 29.01.2018, which was covered by export invoice dated 24.01.2018, under a Shipping Bill dated 25.01.2018. 7. The petitioner attempted to file an application for refund of unutilised ITC for the ....
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....ntered by the petitioner initially at the time of filing monthly refund applications. He contended that the said applications were within time, however, the petitioner could not complete the filing without any fault on its part and therefore, the petitioner's claim could not be rejected on the ground of limitation. He relied on the decision of the Gujarat High Court in Ezzy Electricals v. State of Gujarat: R/SCA No. 13091/2020, decided on 16.02.2022, in support of his contention that the petitioner could not be denied of its entitlement on account of a technical glitch. He referred to the decision of this Court in Anuj Gupta (Proprietor of M/s Quality Auto Export) v. Commissioner of GST, Delhi North and Ors.: W.P.(C) 16070/2022, decided on 13.01.2023, whereby this Court had directed the respondents to address the technical problems and process the application for refund filed by the petitioner in that case. 15. He also relied on the decision of the Supreme Court in Union of India and Anr. v. FILCO Trade Centre Pvt. Ltd. and Anr.: 2022 SCC OnLine SC 1630 in support of his contention that at the material time, the taxpayers could not comply with the requirements on account of the te....
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....has been defined in Explanation (2) to Section 54 of the CGST Act. Clause (a) of Explanation (2) to Section 54 of the CGST Act is set out below: "(2) "relevant date" means - (a) in the case of goods exported out of India where a refund of tax paid is available in respect of goods themselves or, as the case may be, the inputs or input services used in 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 dispatch of goods by the Post Office concerned to a place outside India;" 19. In view of the above, there is no cavil that the petitioner was required to make an application for refund under Sub-section (1) of Section 54 of the CGST Act within two years of the goods leaving India or crossing its territorial frontiers. 20. The controversy essentially revolves around whether the petitioner did make an application within the period and/or was prevented from doing so. It is not disputed that at the material time, there was confusion r....
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....it applicant is right in his submission that had the department at the earliest point of time brought to the notice of his client about wrong offline tool being used by the writ applicant, then probably, something could have been worked out. 7. Be that as it may, it is for the respondents now to do the needful and ensure that the writ applicant is permitted to upload the Form ITC -01 so as to enable him to claim the Input Tax Credit worth Rs.5 lakh approximately under Section 18(1)(c) of the Act. Mr. Sharma has ensured this Court that the needful shall be done at the earliest." 26. In M/s Lenovo India Pvt. Ltd. v. The Joint Commissioner of GST (Appeals-1) & Ors.: 2023 SCC OnLine Mad 7810, the learned Single Judge of the Madras High Court has held that the period of two years as stipulated in Section 54(1) of the CGST Act is directory and not mandatory. Thus, even if an application is made beyond the period of two years, the taxpayer's claim cannot be denied. We respectfully have reservation regarding this view. However, we do accept that if the taxpayer has made a bona fide attempt to make an application but was prevented to do so on account of technical glitches or for any re....