2023 (6) TMI 685 - HC - GST

Refund of ITC on export of goods and services without payment of tax - opportunity of hearing not provided before rejection of refund - Section 54(3) of the Central Goods and Services Tax Act, 2017 - HELD THAT - This Court, after noticing the fact that Petitioner was earlier communicated that its refund has been sanctioned and also the fact that the order rejecting refund of the Petitioner was not available as per official record, formed an opinion that in absence of any order available on record rejecting the claim of refund of the Petitioner, it cannot be said that any decision has been taken towards sanction or rejection of refund application of the Petitioner. It would be evident that Petitioner has filed refund application on 04.03.2019 and vide email dated 22.10.2019 and corresponding communication in GSTN Portal, Petitioner was informed that its refund application has been sanctioned which is awaiting issuance of payment advice under RFD-05 by the jurisdictional officer. Consequent thereto, Petitioner repeatedly followed-up with the Respondent- Department for issuance of payment advice and after a lapse of about 30 months, in the month of April, 2022, Petitioner was communicated for the first time that its refund application has been rejected through RFD 01-B and the refund order is bearing order no. 91 dated 18.10.2019. However, copy of the said refund rejection order is not available in the record of the Department. Admittedly, no opportunity of hearing has been granted to the Petitioner before passing of the purported order of rejection of refund. This Court, vide order dated 30.01.2023, held that in absence of any order either sanctioning or rejecting refund application being available on record, no decision can be said, under law, to be taken on the refund application of the Petitioner. Accordingly, we directed the respondent to take decision on the refund application of the Petitioner. However, despite the order, which has not been challenged by the Respondents, the Respondents have not taken any decision on the refund application of the Petitioner, but instead, filed supplementary counter affidavit again stating, inter alia, that refund application of the petitioner has been rejected vide Order no. 91 dated 18.10.2019 despite the fact that said order is not available in the official record and has contended that petitioner should file refund application afresh. The alleged order bearing Order no. 91 dated 18.10.2019, by which refund application of the Petitioner has been purportedly rejected by the Respondent, is non-est in the eye of law being a non-existing order and the claim of refund of the Petitioner is required to be processed in terms of its original application being Application Reference Number (ARN) AA200318232092U dated 04.03.2019 - application allowed.

Summary

Issues Involved:
1. Legality of the refund rejection order.
2. Entitlement to refund of ITC on export of goods and services.
3. Entitlement to statutory interest on the refundable amount.

Summary:

1. Legality of the Refund Rejection Order:
The petitioner sought the production and quashing of the refund rejection order RFD-06 No. 91 dated 18.10.2019. The court noted that the Respondents admitted the absence of this order in the official record. Despite this, the Respondents argued that the petitioner should have filed an appeal under Section 107(1) of the CGST Act. The court found that no decision had been taken on the refund application due to the non-existence of the rejection order and directed the Respondents to take a decision on the refund application within four weeks.

2. Entitlement to Refund of ITC on Export of Goods and Services:
The petitioner applied for a refund of unutilized ITC for the period 2017-18, which was initially communicated as sanctioned but later informed as rejected without any official order. The court held that the rejection was done without following the principles of natural justice and Rule 92(3) of the CGST Rules, which requires an opportunity of hearing before rejecting a refund application. The court directed the Respondents to process the refund claim based on the original application dated 04.03.2019.

3. Entitlement to Statutory Interest on the Refundable Amount:
The petitioner claimed statutory interest on the refundable amount of Rs. 2,90,86,294/- @ 6% per annum from the expiry of 60 days from the date of receipt of the application for refund. The court referenced the Supreme Court's judgment in Union of India vs. Tata Chemicals, which held that the right to interest follows as a matter of course when money is retained without right. The court ruled that the petitioner is entitled to interest under Section 56 of the CGST Act.

Conclusion:
The court declared the alleged refund rejection order as non-existent and directed the Respondents to process the refund claim along with statutory interest within three weeks. The petitioner's application was allowed and disposed of without any order as to costs.