TaxTMI 
TaxTMI 
2025 (6) TMI 1841
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....d for the following reliefs : "a) this Hon'ble Court be pleased to issue a Writ of Certiorari or a writ in the nature of Certiorari or any other writ, order or direction under Article 226 of the Constitution of India calling for the records pertaining to the Petitioner's case and after going into the validity and legality thereof be pleased to quash and set aside the impugned order dated 10.06.2024 passed by the Respondent No. 3 (ANNEXURE "A"); (b) this Hon'ble Court be pleased to issue a Writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ, order or direction under Article 226 of the Constitution of India ordering and directing the Respondents to forthwith sanction the refund of Rs.1,82,99,406 as claimed by the Petitioner along with the appropriate interest; (c) pending the hearing and final disposal of this Petition, this Hon'ble Court be pleased to direct the Respondents by an interim order and injunction to forthwith deposit an amount of Rs. 1,82,99,406 in this Hon'ble Court with a liberty to the Petitioner to withdraw the same, without prejudice to the Petitioner's right of refund of the actual amount along with appro....
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.... group follows a common clearing mechanism since the year 1997. (iii) Through the said common clearing mechanism, the petitioner receives the consideration in foreign currency net of the payments required to be made by the petitioner to its overseas group entities on a pan-India level. (iv) The RBI has accorded its approvals dated 30.09.1997 and 24.12.1997 to the said common clearing mechanism. (v) For example, if during a month the petitioner has a receivable of USD 1,000 and payable of USD 800, in terms of the RBI approval, the petitioner is allowed to set off the amount payable with the amounts receivable and bring into India a remittance of USD 200. (vi) Accordingly, though on a pan-India level the receipt is USD 1000, the petitioner actually brings in a foreign currency of USD 200 only which also reflects in the EEFC bank account statement and the petitioner receives Inward Payment Customer Advice from its Bank for USD 200 received in India. (vii) The net amount received by the petitioner is also certified by an independent Chartered Accountant post verification of the underlying documents on a monthly basis and the petitioner is required to submit the said certifica....
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....d by the petitioner displayed the net amounts received by the petitioner on a pan-India level. 5.12. It is further the case of the petitioner that during personal hearing on 02.05.2023, the petitioner submitted another Certificate from an independent Chartered Accountant certifying the quantum of foreign currency received for the State of Gujarat for the relevant period as a part of the common clearing mechanism. However, vide Order bearing Ref. No. ZG2405230109575 dated 08.05.2023 issued in Form GST RFD-06, the respondent No. 4 rejected the refund claim of Rs. 1,82,99,406/- filed by the petitioner for the period from April, 2021 to June, 2021 and held that the petitioner had not submitted FIRCs relevant to the export invoices in terms of Rule 89(2)(c) of the CGST Rules and that the Petitioner has submitted the Chartered Accountant Certificate providing details of the foreign currency received in respect of export of services from Gujarat without submitting the supporting documents and therefore, the petitioner submitted another Certificate from an independent Chartered Accountant with a detailed reconciliation of the forex receivable and forex payable for pan-India level for the ....
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....cate Mr. Prakash Shah for the petitioner submitted that the petitioner has fulfilled all the conditions for eligibility of the refund claim and therefore, both the authorities below could not have rejected the same on the ground of procedure. 6.2. It was submitted that the petitioner was entitled to the refund as the petitioner has realised the net foreign exchange after net-off of the amount to be received from import of the foreign services and accordingly, the petitioner qualifies for the refund for supply of export of services as defined in Section 2(6) of the IGTS Act. 6.3. It was further submitted that the respondent-Authorities have not disputed that the petitioner has fulfilled the substantial conditions under the law and only on the ground that the petitioner failed to produce Foreign Invert Remittance Certificate (FIRC) and has submitted only the foreign inward receipt issued by the Standard Chartered Bank, the refund claim of the petitioner was rejected. 6.4. It was therefore submitted that when the factum of export of services is not disputed and petitioner has complied with all the norms and requirements of the refund and the refund application is filed without rece....
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....in accordance with law. 7.1. On the other hand, learned advocate Mr. Ankit Shah submitted that the respondent-Authorities have rejected the refund claim relying mainly on the Circular No. 125/44/2019 issued by the CBIC under which the petitioner was required to enclose FIRC with refund claim. It was pointed out that it is an admitted fact that the petitioner has not provided the FIRC to the respondent-Authority and to the either of the Adjudicating Authority and has not taken the cognizance of the essential condition and filed the refund claim of the huge amount without complete documents and therefore, in absence of the requisite documents as required under the Circular 125/44/2019 issued by the CBIC, the refund claim was rightly rejected. 7.2. It was further submitted that the petitioner has remained careless in compliance of the requisite requirement of submitting the documents in form of FIRC and therefore, the claim made by the petitioner without providing the requisite documents is rejected. It was pointed out that the Appellate Authority has also taken into consideration the documents and the submissions made by the petitioner and thereafter, considering the same has passe....
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....with the refund claim application, however, both the Adjudicating Authority and the Appellate Authority have discarded the same only on the ground that the petitioner did not submit the Foreign Exchange Inward remittance Certificate (FIRC) as required by the Circular No. 125/44/2019 which reads as under : "3. With effect from 26.09.2019, the applications for the following types of refunds shall be fled in FORM GST RED 01 on the common portal and the same shall be processed electronically: a. Refund of unutilized input tax credit (ITC) on account of exports without payment of b. Refund of tax paid on export of services with payment of tax; c. Refund of unutilized ITC on account of supplies made to SEZ. Unit/SEZ Developer without payment of tax; d. Refund of tax paid on supplies made to SEZ Unit/SEZ Developer with payment of tax; e. Refund of unutilized ITC on account of accumulation due to inverted tax structure; f. Refund to supplier of tax paid on deemed export supplies; g. Refund to recipient of tax paid on deemed export supplies; h. Refund of excess balance in the electronic cash ledger; i. Refund of excess payment of tax; j. Refund of tax paid on intra-Sta....
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....RM GST RFD-02) or deficiency memo (FORM GST RFD-03), as the case may be, would be issued electronically by the jurisdictional tax officer based on the documents so received from the common portal. d. If a refund application is electronically transmitted to the wrong jurisdictional officer, he/she shall reassign it to the correct jurisdictional officer electronically as soon as possible, but not later than three working days, from the date of generation of the ARN. Deficiency memos shall not be issued in such cases merely on the ground that the applications were received electronically in the wrong jurisdiction. e. It may be noted that the facility to reassign such refund applications is already available with the Commissioner or the officers) authorized by him." 10. It appears that Annexure A referred to in the aforesaid paragraph requires statement-3 under the Rule 89(4) of the CGST Rules along with supporting documents to be additionally uploaded containing the BRC/FIRC in case of the export of services. The petitioner along with the refund application dated 16th February, 2023 has also submitted the Statement-3 for the period from April, 2021 to June, 2021 giving all invoic....