TaxTMI 
TaxTMI 
2025 (3) TMI 835
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.... refund claim on this merits. 3. In W.P.No.6541 of 2022, the petitioner has challenged the Circular No.125/44/2019 dated 18.11.2019 issued by the third respondent and for a further direction to the first respondent to reconsider the refund claim on its merits. 4. The Petitioner is aggrieved by Paragraph 12 of the Impugned Circular No.125/44/2019 dated 18.11.2019 issued by the third respondent. Paragraph 12 of Circular No.125/44/2019 dated 18.11.2019 issued by the third respondent impugned in W.P.No.6541 of 2022 reads as under:- "12. It is also clarified that since a refund application filed after correction of deficiency is treated as a fresh refund application, such a rectified refund application, submitted after correction of deficiencies, shall also have to be submitted within 2 years of the relevant date, as defined in the explanation after sub-section (14) of section 54 of CGST Act." 5. In W.P.Nos.6524, 6527 and 6537of 2022, the petitioner has challenged the following Order-in-Appeal Nos.237-638/2021-JC (GSTA-II) all dated 05.08.2021 passed by the first respondent. The details of the Impugned Orders are as follows:- Table-1 Sl. No. W.P.No. D....
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.... or both as may be notified by the Government on the recommendations of the Council. Provided further that no refund or unutilized Input Tax Credit shall be allowed in cases where the goods exported out of India are subjected to export duty. Provided also that no refund of Input Tax Credit shall be allowed, if the supplier of goods or services or both avails of drawback in respect of central tax or claims refund of the integrated tax paid on such supplies. 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. Explanation.- For the purposes of this section, - (1) "refund" includes refund of tax paid on zero-rated supplies of goods or services or both or on inputs or input services used in making such zero-rated supplies, or refund of tax on the supply of goods regarded as deemed exports, or refund of unutilised input tax credit as pro....
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....lized Input Tax Credit under clause (ii) of the first proviso to subsection (3), the due date for furnishing of return under Section 39 for the period in which such claim for refund arises. I find that this Explanation is applicable to clause (ii) of the first proviso to sub-section (3) of Section 54 which states that "where the credit has accumulated on account of rate of tax on inputs being higher than the rate of tax on output supplies (other than nil rated or fully exempt supplies), except supplies of goods or services or both as may be notified by the Government on the recommendations of the Council:" The appellant's contention that the relevant date for claiming the eligible unutilized ITC is the end of the financial year in which such claim for refund arises and two years from the relevant date should be calculated from the end of the financial year is not tenable as the refund claims in the present appeal is on account of refund of ITC accumulated on Export of goods (without payment of tax). 8.3 On the other hand, I find that Explanation 2(a) to Section 54 of the Act stipulates for relevant date, "(a) in the case of goods exported out of Inia where a refund of ....
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....8 28.03.2019 18.10.2019 01.11.2019 1,21,98,028 3. 6537/2022 10.10.2018 28.03.2019 18.10.2019 01.11.2019 1,48,15,030 Total : 3,10,93,487 11. The second respondent as the Lower Adjudicating Authority rejected the refund claims filed by the petitioner on the ground of limitation in the light of the Impugned Circular No.125/44/2019 dated 18.11.2019. The first respondent as the Appellate Authority has affirmed the views of the second respondent vide the Impugned Orders. 12. The point for consideration in these Writ Petitions are whether the refund claims were filed in time or beyond time within the meaning of Section 54 of the Central Goods and Service Tax Act,2017? 13. If W.P.No.6524 of 2022, W.P.No.6527 of 2022 and W.P.No.6537 of 2022 are to be allowed on a plain reading of the provisions, it may be unnecessary to pass any detailed orders in W.P.No.6531 of 2022 and W.P.No.6541 of 2022. 14. These refund claims were filed by the petitioner for refund of unutilized Input Tax Credit on the supplies under Section 16(3)(a) of the Integrated Goods and Services Tax (IGST) Act, 2017 read with S....
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....petitioner would submit that Explanation 2(e) to Section 54 of CGST Act, 2017 was amended vide CGST Amendment Act, 2018 (31/2018) dated 30.08.2018 only with effect from 01.02.2019 vide Notification No.02/2019-CT dated 20.01.2019. 23. It is therefore submitted that the restricted period of limitation prescribed by virtue of the above amendment for refund of unutilized Input Tax Credit arising out of the inverted tax structure will not apply to refund of unutilized Input Tax Credit on the exports made during 2018 since the refund claims filed on 21.09.2018, 09.10.2018, 10.10.2018 long before the above amendment. 24. It is submitted that since the refund claims were not on account of refund of unutilized Input Tax Credit arising out of the inverted tax structure, the refund claims were filed in time. Therefore, there was no justification in rejecting the refund claims of the petitioner as time barred. 25. That apart, the learned counsel for the petitioner has placed reliance on Proviso to Rule 90(3) of CGST Rules, 2017 inserted vide Notification No.15/2021-Central Tax (CT) dated 18.05.2021. It was therefore submitted that Proviso to Rule 90(3) inserted vide Notification No.15....
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....spondents further submits that on the date of filing of manual refund claim, Explanation 2(e) to Section 54 of CGST Act had been substituted and was confined only to refund of Input Tax Credit in the context of Zero Rated Sales made without payment of tax and not to exports made without payment of tax to claim refund of Input Tax Credit. 35. It is submitted that the applications were filed in terms of Circular No.17/17/2017-GST dated 15.11.2017. It is submitted that the refund claims which were manually filed only on 28.03.2019 were beyond the period of two years limitation prescribed under Section 54(1) read with Explanation 2(a)(i) to Section 54(14) of CGST Act as they were incomplete. Hence, it is submitted that the Impugned Order of the first respondent affirming the Order of the second respondent does not merit any interference. 36. I have considered the arguments advanced by the learned counsel for the petitioner and the learned counsel for the respondents. 37. Admittedly, the exports were made by the petitioner during July 2017, August 2017 and September 2017. Refund claims were filed during the months of September 2018 and October 2018 as detailed in Table-2 of thi....
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....how it presently reads. For the sake of clarity, both the amended and un-amended Section 16(3) of IGST Act, 2017 as it stood during the period of dispute are reproduced below:- Section 16(3) of IGST Act, 2017 (Un-amended Section 16 of IGST Act, 2017 as it stood during the period in dispute) ((amended) substituted by the Finance Act, 2021 with effect from 01.10.2023) (3) A registered person making zero rated supply shall be eligible to claim refund under either of the following options, namely:- (a) He may supply goods or services or both under bond or Letter of Undertaking, subject to such conditions, safeguards and procedure as may be prescribed, without payment of integrated tax and claim refund of unutilised Input Tax Credit. (b) He may supply goods or services or both, subject to such conditions, safeguards and procedure as may be prescribed, on payment of integrated tax and claim refund of such tax paid on goods or services or both supplied, in accordance with the provisions of Section 54 of the Central Goods and Services Tax Act or the Rules made thereunder. (3) A registered person making zero rated supply shall be eligible to claim refund of ....
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....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 Sub-Section (6) of Section 49, may claim such refund in such form and manner as may be prescribed." 49. Explanation 2 to Section 54 of CGST Act, 2017 defines the expression "relevant date". 50. For the purpose of resolving the dispute in the present case, it will be useful to refer to Explanation 2(a)(i) and 2(e) to Section 54 of CGST Act, 2017 are relevant. 51. By this time, Explanation 2(e) to Section 54 of CGST Act, 2017 had been amended with effect from 01.02.2019. 52. If the date of refund claim is taken as 21.09.2018, 09.10.2018 and 10.10.2018, the refund claim was within the period of limitation. On the other hand, if the date of refund claim is taken as 18.10.2019, or on other dates in Table-2 of this order, the refund claims would be beyond the period of limitation as per Paragraph 12 of the Circular No.125/44/2019-GST dated 18.11.20....
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....ses. in the case of refund of unutilized 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. 57. A reading of the limitation under Explanation 2(a) to Section 54 of CGST Act, 2017 and Explanation 2(e) to Section 54 of CGST Act, 2017 till 31.01.2014 indicates that they provide two periods of limitation namely for refund of unutilised Input Tax Credit. 58. As per Clause(ii) to Proviso to Section 54(3) of CGST Act, 2017, a registered person may claim refund of any unutilized Input Tax Credit at the end of any tax period. The expression "Tax Period" has been defined in Section 2(106) of CGST Act, 2017. For the sake of clarity, Section 54(3) and Section 2(106) of CGST Act, 2017 are reproduced below:- Section 54(3) of CGST Act, 2017 Section 2(106) of CGST Act, 2017 (3) Subject to the provisions of subsection (10), a registered person may claim refund of any unutilised input tax credit at the end of any tax period: Provided that no refund of unutilised input tax credit shall be allowed in cases other than i. zero rated supplies ....
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....urisdictional tax office along with all supporting documents. Thus, refund claims were refiled manually along with supporting documents on 28.03.2019. These refund claims were however returned for defects. Thus, they were thereafter re-presented on 18.10.2019 and were acknowledged on 01.11.2019. 65. There is no dispute that refund claim was indeed filed within two years from the "relevant date" as defined in Explanation 2(a) to Section 54(14) of CGST Act as it stood during the period in dispute. 66. The amendment to Clause 2(e) to Section 54(14) of CGST Act vide Notification No.02/2019-CT dated 29.01.2019 is not relevant for the purpose of computation of limitation. 67. In this case, the refund claims were filed within a period of 1 year and few months as in Table-2 of this order. Therefore, the Impugned Order of the Appellate Commissioner affirming the Order of the Lower Appellate Authority rejecting the refund claim are unsustainable. 68. Rule 90(3) of the CGST Rules, 2017 deals with "acknowledgement of refund claim". It reads as under:- Rule 90.Acknowledgement: (1) ..... (2) ..... (3) Where any deficiencies are notified, the proper....