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2021 (7) TMI 1164 - Commissioner - GSTRefund claim - zero-rated supplies - appellant did not furnish the DRC-03 as required in case where the refund is applied again after issuance of deficiency memo - sufficient opportunity of being heard not provided - HELD THAT - The appellant has filed Refund for ₹ 7,35,253/- for which deficiency memo No. ZW0801200310312 was issued stating that supporting documents attached are incomplete. The appellant filed afresh ARN Receipt AA080120043271Y (GST RFD-01), dated 28-1-2020 for ₹ 7,62,291/- for which the show cause notice No. ZO0802200237580 (RFD-08) was issued by the Proper Officer i.e. Assistant Commissioner, Division-F, Jaipur on 19-2-2020 and served the same through Common Portal. The appellant only received the e-mail dated 26-2-2020 stating that This mail is in reference to the AA080120043271Y; 26-2-2020 filed by you. Sanction Order RFD-06/ZY0802200326224/26-2-2020 has been issued for above mentioned refund application. And has not received the refund order i.e. RFD-06 (ZY0802200326224, dated 26-2-2020) issued by the Proper Officer i.e. Assistant Commissioner, Division-F, Jaipur - it is deduced that the appellant was neither received the Show cause notice (RFD-08) in appropriate manner nor got the opportunity of being heard to put their submission before the proper officer. The Proper Officer while passing the refund order of the appellant neither considered their defence submission/reply nor granted the opportunity of personal hearing - matter remanded with the direction to make necessary verification regarding the correctness of the averment of the appellant - appeal allowed by way of remand.
Issues involved:
1. Improper communication of the Show Cause Notice (SCN). 2. Non-consideration of the appellant's response by the adjudicating authority. 3. Lack of sufficient opportunity for a hearing. 4. Non-availability of the order to the appellant. Detailed Analysis: 1. Improper Communication of the Show Cause Notice (SCN): The appellant contended that the SCN was not properly communicated, as it was not downloadable from the Common Portal. Despite efforts, the appellant could not access the SCN and had to inquire about its contents from department officers. The appellant argued that such an SCN, which was neither downloadable nor sent by any other means prescribed under Section 169 of the CGST Act, 2017, cannot be considered valid service. The appellant provided a screenshot of the Common Portal, showing only the SCN number without any option to download or view the content. 2. Non-consideration of the Appellant's Response by the Adjudicating Authority: The appellant claimed that despite submitting a reply to the SCN in form RFD-09 and filing form DRC-03 as required, the adjudicating authority did not consider these submissions. The appellant argued that this non-consideration rendered the order illegal, as an adjudicating authority is required to pass a speaking order that takes into account all facts and allegations. The appellant cited Rule 90(3) of the CGST Rules, 2017, which mandates that an order should be made only after considering the applicant's reply, and no application for refund should be rejected without giving the applicant an opportunity of being heard. 3. Lack of Sufficient Opportunity for a Hearing: The appellant argued that they were not provided with a sufficient opportunity for a hearing. The SCN was not issued properly, and no time limit was given for the appellant's personal appearance. The appellant emphasized that principles of natural justice were not followed, as required under Section 75(4), (5), and (6) of the CGST Act, 2017, and Para 3.3 of CBEC Circular No. 17/17/2017-GST, dated 15th November 2017. 4. Non-availability of the Order to the Appellant: The appellant claimed that the order passed by the adjudicating authority was not made available to them. Similar to the SCN, the order was not downloadable, and no physical copy was provided. The appellant argued that without proper communication, the order cannot be binding and is liable to be set aside. Judgment: The appellate authority carefully reviewed the facts and submissions. It was found that the appellant did not receive the SCN in an appropriate manner and was not given an opportunity to be heard. The relevant provisions of the CGST Act, 2017, and CGST Rules, 2017, were cited, emphasizing the need for proper communication and adherence to principles of natural justice. The appellate authority concluded that the proper officer did not consider the appellant's defense submission/reply or grant an opportunity for a personal hearing. Therefore, the matter was remanded with directions to verify the appellant's claims, provide a proper hearing, and pass a speaking order detailing the factors leading to the rejection of the refund claims. The appellant was also directed to submit all relevant documents/submissions before the adjudicating authority. Disposition: The appeal was disposed of with the above directions, ensuring adherence to principles of natural justice.
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