TaxTMI 
TaxTMI 
2026 (4) TMI 1212
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....lead matter. For convenience, we refer to the facts of the said petition in adjudicating the present batch of petitions. 2. The issue which falls for consideration of this Court in the present proceedings pertains to the action of the department in rejecting the petitioner's refund application, by an order in original. The said order was assailed by the petitioner by filing appeals, however, the appeals came to be rejected by the impugned order dated 31 July, 2023, on the ground that they were barred by limitation in view of the provisions of Section 107(1) of the CGST Act, 2017. 3. The facts relevant for the adjudication of these petitions need to be set out: The petitioner is a company engaged in the business of providing bulk carrier, container carrier and shipping services at various ports in India. The petitioner contends that in December 2017, it supplied services to SEZ unit, which were zero-rated supplies, on payment of IGST. Consequently, the petitioner contends that it became entitled to the refund of tax so paid. Accordingly, on 28 August, 2018, the petitioner filed refund application in respect of such IGST paid for December, 2017, in Writ Petition (L) No. 36200 o....
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....ies have been noticed below: Sr.No. Description (select the reason from the drop down of the Refund application 1 Others You are advised to file a fresh refund application after rectification of above deficiencies. Remarks : Assessee has not provided copy of appeal order in their favour. Date : 27/02/2020 6:01 pm Place: DIVISION III Signature(DSC) Name of Proper Officer: Durgesh Yadav Salunke Designation : Assistant Commissioner Office Address : DIVISION III" 5. However, a further action on the deficiency memo was not taken. As the deficiency memo recorded that the petitioner was required to provide a copy of the order in appeal, it appears that the petitioner was advised to file an appeal before the First Appellate Authority assailing the refund rejection order dated 13 September, 2019, which came to be filed on 27 March, 2023. The said appeal was admittedly filed beyond the period of limitation as prescribed under Section 107 of the CGST Act. The appeal, along with an application for condonation of delay, was filed manually for the reason that the original order rejecting the petitioner's refun....
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.... commence only from the date of uploading the adjudication order on GST portal; (d) that this Hon'ble Court be pleased to issue a Writ of Mandamus 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 of the provisions condone the delay, if any, in filing of appeal before the Respondent No. 3; (e) that this Hon'ble Court be pleased to issue a Writ of certiorari/ mandamus or any other appropriate Writ/order/direction under Article 226 of the Constitution of India calling for the records pertaining to the Petitioner's case and after perusing the same direct the Respondent No. 3 & 4 to sanction the refund, along with interest forthwith;" 8. Mr. Raichandani, learned counsel for the petitioner, submits that the initial order rejecting the petitioner's refund application is defective and not in accordance with the requirements of Rule 92 of CGST Rules, 2017. He contends that once the original order rejecting the refund application was void ab-initio and, consequently, non est, t....
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....would be necessary to grant an opportunity of personal hearing before the refund application is rejected. According to Mr. Raichandani, in the present case, there is certainly a breach of Rule 92(3), as neither a deficiency memo was issued nor any hearing granted to the petitioner prior to the rejection order dated 13 September, 2019. 11. On the other hand, Mr. Subir Kumar, learned counsel for the respondent has supported the impugned order. He submits that the Appellate Authority has rightly rejected the appeal on the ground that it was barred by delay and there was no jurisdiction to condone the period of such delay. He would submit that the original order would be required to be held to be appropriate, hence the petitioner was not entitled for refund. Mr. Subir Kumar, however, would not dispute that the petitioner has filed subsequent refund application on which a deficiency memo was issued. Mr. Subir Kumar would also be not in a position to justify from the record that while passing the order dated 13 September, 2019, the Designated Officer complied with the mandate of Rule 92 of the CGST Rules. 12. Having heard learned counsel for the parties and having perused the recor....
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....immediately moved an application dated 31 January, 2020 seeking to rectify the refund application and making a fresh application immediately on 12 February, 2020 which was just a month prior to the beginning of the Covid-19 pandemic, and on which the deficiency memo dated 27 February, 2020 was issued. In these circumstances, in our opinion, the application of the petitioner for refund ought to have been considered, when the same was sought to be entertained by the Designated Officer. 16. There is one more aspect, which we need to note that as per the requirements of law, the rejection was required to be uploaded on the GST portal, which was not uploaded in the present case. This was also pointed out by the petitioner to the designated authority and to the appellate authority. 17. Thus, taking an overall view of the matter, in our opinion, it would be necessary that the basic rights of the petitioner/assessee as conferred by law would be required to be recognized, namely, that the petitioner's refund application would be required to be dealt only in the manner as the rules (supra) would provide, as held by this Court in M/s. Knowledge Capital Services Pvt. Ltd. (supra). This m....