2021 (12) TMI 419 - HC - GST

Refund of excess payment of IGST - Petitioner has failed to submit any reply with regard to the show cause notice - Interpretation of the term subsequently held as per Circular dated 25.09.2021 - Section 77 of CGST Act, 2017 and Section 19 of the IGST Act, 2017 - HELD THAT - While referring to the aforesaid circular which is clarificatory in nature of the word subsequently held , it is contended by learned counsel for the Petitioner that since the said word referred to the aforesaid provisions of Section 77 of the CGST Act, 2017 read with Section 19 of IGST Act, 2017, has been interpreted by observing inter alia that the refund under the said sections is also available when the inter-State or intra-State supply made by a taxpayer, is subsequently found by taxpayer himself as intra-State and inter-State respectively, therefore, the matter may be remitted to the concerned appellate authority for the consideration of his claim/application made under sub-rule (1) of Rule 89 of the Rules, 2017 for refund of ₹ 12,69,255/- afresh in the interest of justice. T he circular dated 25.09.2021 interpreting and/or clarifying the word subsequently held , it would, therefore, be appropriate to remit the matter back to the concerned appellate authority. The order impugned is accordingly set aside and the matter is remitted back to the concerned appellate authority with a direction to decide the same afresh - petition allowed by way of remand.

Summary

Issues:
Challenge to order dismissing refund claim under Rule 89(1) of CGST Rules, 2017 based on failure to reply to show cause notice. Interpretation of "subsequently held" in Section 77 of CGST Act, 2017 and Section 19 of IGST Act, 2017 for refund eligibility.

Analysis:
1. The petitioner's refund claim of ?12,69,255 was rejected by the Deputy Commissioner due to non-submission of a reply to the show cause notice, leading to the appeal before the Additional Commissioner (Appeals).

2. The Additional Commissioner, while considering Section 77 of CGST Act, 2017 and Section 19 of IGST Act, 2017, held that a refund would only arise when a supply is held differently by an authority, not suo motu, thus upholding the rejection of the refund claim.

3. The petitioner cited a circular clarifying the term "subsequently held," stating that refund claims can be made if a taxpayer identifies the supply differently or if the tax officer does so in any proceeding. The petitioner requested a fresh consideration based on this interpretation.

4. The court, after considering the circular, remitted the matter back to the appellate authority for a fresh decision, setting aside the previous order. The court emphasized that it did not express any opinion on the case's merits, leaving the decision to the appellate authority.

5. The judgment concluded by disposing of the petition, directing the appellate authority to review the refund claim afresh in light of the circular issued on 25th September, 2021, and in accordance with the law, without expressing any view on the case's substance.