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2021 (8) TMI 843 - Commissioner - GSTRefund of IGST - rejection of the refund on the ground of the limitation - Communication of deficiency memo to appellant or not - existence of deficiency in the refund application or not - time limitation as per provisions of Section 54 of CGST Act, 2017 - HELD THAT - The original refund application of the appellant was not filed with all relevant documents as prescribed under Section 54 (4) of CGST Act, 2017 read with Rule 89 (2) of CGST Rules, 2017. Further, there are no reason to rely on screen shot of RFD-01 as it was only a draft stage application, it could be possible that while submitting the application, appellant might have not uploaded certain mandatory documents on the common portal. In view of said circumstances, the proper officer has issued the said deficiency memo in consonance to the provisions of laws and rules made thereunder. Time Limitation - HELD THAT - It is evident that the refund claim should be filed within two years from the relevant date. The refund was filed against ITC accumulated on account of export of goods without payment of tax, so relevant date under such cases shall be counted from the date of EGM of Shipping Bills, in plain it can be stated that the date on which goods were left Indian frontier either by sea or air. On perusal of Shipping Bills associated with said refund, it can be stated that Shipping Bill No. 8689481/02.11.2018 (EGM dated 06.11.2018) of sum ₹ 26,06,527/- only hit by the clause of limitation and is time barred. For the purpose of reckoning relevant date in the instant case is the date on which such goods pass the frontier which suitably can be derived as date of filing EGM in terms of the Customs procedure. As per customs procedure, EGM means (export goods manifest) a document which is filed by the carrier of the export consignment before the departure of the carrier (shipments, airlines etc.,) and it is considered as proof of shipment. Accordingly, the refund amount of ₹ 26,05,527/- as claimed in respect of Invoice No. EXP/MDV/18-19/01 dated 26.10.2018, Shipping Bill No. 8689481 dated 02.11.2018, EGM No.22147 date of EGM 06.11.2018 is hit by the clause of limitation as it is time barred and rest of the claim in the instant case falls within the limitation period, therefore, the refund of the same may be considered for sanction in view of provisions of laws rules made thereunder and as per procedure laid down under the various circulars issued from time to time by the CBIC, New Delhi. Appeal allowed in part.
Issues Involved:
1. Communication and validity of the deficiency memo. 2. Time-barred status of the refund claim under Section 54 of the CGST Act, 2017. Detailed Analysis: Issue 1: Communication and Validity of the Deficiency Memo Contention by Appellant: The appellant argued that the deficiency memo issued on 12.11.2020 was not communicated via the GSTN portal, email, or physical hard copy. They asserted compliance with all statutory provisions and claimed that all necessary documents were submitted with the original application filed on 02.11.2020. The appellant also contended that the deficiency memo was issued without specifying the incompleteness in the documents, which they deemed unfair and unlawful. Findings: The adjudicating authority clarified that as per Rule 90(3) of the CGST Rules, 2017, the deficiency memo should be communicated through the common portal electronically. The appellant was aware of the deficiency memo, as evidenced by emails sent to the department on 18th November 2020, acknowledging the issuance of the memo. The authority found that the original refund application lacked all relevant documents as required under Section 54(4) of the CGST Act, 2017, and Rule 89(2) of the CGST Rules, 2017. The deficiency memo was issued within the prescribed 15-day period, and the proper officer acted in accordance with the law. Conclusion: The deficiency memo was validly issued and communicated through the common portal. The original refund application was incomplete, justifying the issuance of the deficiency memo. Issue 2: Time-Barred Status of the Refund Claim Contention by Appellant: The appellant argued that the relevant date for calculating the two-year limitation period should be the date when the goods passed the frontier of India, not the date of the export invoice. They provided details of shipping bills, invoices, and EGM dates to support their claim. The appellant also contended that the date of the first application (02.11.2020) should be considered for limitation purposes, not the date of the fresh application (19.11.2020) filed after the deficiency memo. Findings: The adjudicating authority noted that the relevant date for calculating the limitation period is the date on which the goods leave India, as per Section 54, Explanation 2(a)(ii) of the CGST Act, 2017. The date of filing the fresh refund application (19.11.2020) was correctly considered, as the initial application was incomplete. The refund claim for the period 02.11.2018 to 19.11.2018 was found to be time-barred, while the rest of the claim was within the limitation period. The authority recalculated the admissible refund amount based on the FOB value of the shipping bills. Conclusion: The relevant date for the refund claim is the date when the goods leave India, and the fresh application date (19.11.2020) was correctly used for calculating the limitation period. The refund claim for the period 02.11.2018 to 19.11.2018 is time-barred, while the rest of the claim is admissible. Final Judgment: The appeal was partially allowed. The refund claim for the period 02.11.2018 to 19.11.2018 was rejected as time-barred, while the rest of the claim was considered for sanction. The admissible balance refund amount was recalculated and sanctioned accordingly.
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