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TaxTMI 
TaxTMI 
TaxTMI 
2025 (10) TMI 595
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.... prayed for the following reliefs : "11(a) This Hon'ble Court may be pleased to declare that Para No. 12 to Circular No. 125/44/2019-GST dated 18.11.2019 (Annexure-D so far as it relates to directing to file the rectified refund claim within a period of 2 years of the relevant date as defined in Explanation after sub-section 14 of Section 54 of the CGST Act is ultra vires to Section 54 of the CGST Act, 2017; (b) that this Hon'ble Court be pleased to issue a writ of certiorari or a Writ in the nature of Certiorari, or any other appropriate Writ, Order or direction calling upon the required proceedings in relation to the impugned order in Form RFD-06 on 24.11.2023 vide Order No. ZD241123035802V (Annexure-Q) and after going the legality and propriety thereof, to quash the impugned order dated 24.11.2023 issued by the respondent no. 5; (c) that 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, directing the Respondent to entertain the refund filed in prescribed Form RFD-01 online portal for the month of December, 2017 to the extent of Rs. 83,51,438/- along with int....
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....tion, the respondent issued acknowledgment in Form RFD-01 on 19.06.2021 evidencing that the refund application was complete and there was no document left out for claiming the refund. However, on the same date i.e. on 19.06.2021, a show cause notice in Form RFD-08 was issued by the respondent seeking to show cause as to why the refund application should not be rejected. It is the case of the petitioner that on 13.07.2021, the respondent rejected the second rectified refund application in Form RFD-06, which has led to filing of the writ petition being Special Civil Application No. 2767 of 2023 before this Court. This Court vide order 21.02.2023 quashed the order dated 13.07.2021 rejecting the refund application, on the ground of violation of principles of natural justice and the matter was remanded back to the respondent for fresh adjudication. It was further directed to the respondent to complete the entire proceedings within the limit limit of 12 weeks from the date of the order. 5.3. Pursuant to the order passed by this Court, the petitioner preferred third rectified refund application in Form RFD-01 on 16.08.2023, which according to the petitioner was in continuation of the e....
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....ceedings. 6.2. Learned advocate Mr. Hardik Modh further submitted that the respondent ought to have appreciated the intention of the legislature for invoking limitation period in respect of the refund claim under Section 54 of the CGST Act as well as the procedure for filing fresh refund claim under Rule 90 of the CGST Rules. Learned advocate Mr. Hardik Modh submitted that in catena of decisions it is held that the time limit is required to be computed from the date on which refund claim was originally filed by the applicants. 7. In support of his submissions, learned advocate Mr. Hardik Modh has placed reliance on the following decisions :- 1. In case of M/s. Ktex Non-Woven Pvt. Ltd. v. Union of India reported in 2023(9) TMI 1147- Gujarat High Court. 2. In case of Oil and Natural Gas Corporation Ltd. v. Union of India reported in 2017 (354) E.L.T. 21 (Guj.) 3. In case of Joshi Technologies International v. Union of India reported in 2016 (339) E.L.T 21 (Guj.) 4. In case of Binani Cement Ltd. v. Union of India reported in 2013 (288) E.L.T. 193 (Guj.) 5. In case of Commr. Of C. Ex (Appeals) Bangalore v. KVR Constructions reported in....
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....serve consideration and the same may be dismissed in limine. 9. Having heard the learned advocates for the respective parties and having perused the material on record, the core question for consideration is that subsequent to the refund application triggered with deficiency memo issued in Form RFD-03 is merely continuation of proceedings or fresh cause. In the instant case, the first deficiency memo was issued on 09.01.2020. It is therefore clear that time period from the date of filing of the refund claim in Form GST RFD-01 till the date of communication of the deficiency in the Form of GST RFD-03 by the proper officer is required to be excluded from the period of two years, as specified in respect of any such fresh refund claim filed by the applicant after rectification of the deficiency. However the issue is no more res integra with the decision of this Court in case of M/s. La-Gajjar Machineries Private Limited v. Union of India & Ors. rendered in Special Civil Application No. 15782 of 2022 dated 27.09.2023, wherein it is observed as under :- "[9] Having heard the learned advocates for the respective parties and considering the facts and the provisions of law, whic....
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....hat the proper officer had noticed certain discrepancies in the documents. In addition, he also required the petitioner to provide certain documents in order to verify its claims for refund. It is also apparent that some of the documents demanded were not relevant as the petitioner's claim was for refund of IGST and not unutilised ITC. 23. The nature of the deficiencies as set out in deficiency memo no.2 clearly indicate that the application filed by the petitioner was not incomplete in terms of Rule 89(2) of the CGST Rules. Sub-rules (3) and (4) of Rule 89 of the CGST Rules are not applicable in the facts of the present case. The petitioner had, in terms of Clause (c) of Sub-rule (2) of Rule 89 of the CGST Rules, submitted a statement containing the number and date of invoices and the relevant Bank Realisation Certificates/Foreign Inward Remittance Certificates. It was also accompanied by the necessary declaration as specified. 24. In view of the above, the application for refund filed by the petitioner on 31.10.2019 could not be ignored or disregarded. 25. As noted above, in terms of Section 54(1) of the CGST Act, an application is required to be made i....
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....claim filed by the applicant after rectification of the deficiencies," It is therefore clear that time period from the date of filing of the refund claim in Form GST RFD-01 till the date of communication of the deficiency in the Form of GST RFD-03 by the proper officer is required to be excluded from the period of two years, as specified in respect of any such fresh refund claim filed by the applicant after rectification of the deficiency. The insertion of proviso to Rule 90(3) of the CGST Rules is therefore clarificatory in consonance with the objective of Section 54(1) of the CGST Act. In our opinion, the same would be applicable in the facts of the case also where the rectified refund application filed by the petitioner is within the period of limitation after applying the above provision and shall fall within two years after excluding the period from the date of fling of the refund claim in Form GST RFD-01 till the date of communication in Form GST RFD-03, which is calculated by the petitioner as 26 days as under: Date of filing the Refund claim Date of deficiency pointed out Days to be excluded 16.12.2019 27.12.2019 11 27.01.2020 11.02.2020 ....