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TMI Blog2020 (10) TMI 895X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 under Section 54(1) of the CGST Act, 2017 read with Rule 89 of the CGST Rules, 2017 on the grounds that "The applicable rate of GST in the respective period was 5% but vendor charged 18%. Therefore, GST refund is claimed for the excess GST (13%) paid on canteen services to vendors" during the period November-2017 to July-2018. 2.2 On scrutiny of refund claim filed by the appellant the adjudicating authority observed that the appellant has filed the refund claim for the excess amount of GST charged from them by their service providers namely M/s Caterman Cuisine Concepts P Ltd., Opp-Honda Plant, Main Road, Tapukra, Bhiwadi (GSTIN 08AAFCC2560DIZO) and M/s ICS Foods P Ltd., RHB, Bhiwadi (GSTIN 08AABC18290GIZD) on Canteen Services which appeared to be not admissible to the appellant. 2.3 Accordingly, the adjudicating authority issued a Show Cause Notice dated 18.03.2019 to the appellant proposing therein rejection of refund of Rs. 78,54,790/- Further, after taking into consideration their submission, the adjudicating authority has rejected the refund claim as confirmed vide FORM-GST-RFD-06 dated 21.08.2019. 3. Being aggrieved with the impugned order dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t his case. Natural justice requires that the person directly affected by the proposed acts, decisions or proceedings be given adequate notice of what is proposed, so that he may be in a position to make representation on his own behalf, or to appear at the hearing or inquiry (if any), and effectively represent his own case and answer the case he has to meet. * that it is further necessary to observe that show cause notice is not merely an empty formality. The Appellant submits that the opportunity to show cause has to be real and substantive which means the person concerned must know as to why the adjudicating authority is proposing that the taxpayer is not entitled to refund claim and the same is not covered within the sweep of the CGST Act. It is always expected on the part of the adjudicating authority to disclose material facts and particulars in support of the allegations made in the show cause notice so as to enable the Appellant to meet the case sought to be made out against him * that the Appellant further submits that when an obligation is cast upon the authority to give notice to show cause before reaching the final conclusion against the person affected by its actio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carefully gone through the case records and submission made by the appellant in the appeal memorandum. I find that the adjudicating authority has rejected the refund claim amounting to Rs. 78,54,790/- on the ground that GST was paid by the Service Provider namely M/s Caterman Cuisine Concepts P Ltd., Tapukra, Bhiwadi and M/s ICS Foods P Ltd., RHB, Bhiwadi and the appellant M/s Honda Motorcycle and Scooter India Private Limited as service receiver has not deposited the tax. 6. The issue involved in the present case is that whether the appellant i.e. M/s Honda Motorcycle and Scooter India Private Limited, Bhiwadi is eligible for refund or not as per the provisions of Section 54 of the CGST Act, 2017 read with Rule 89 of the CGST Rules, 2017. 7. Section 54 of the CCST Act, 2017 reads as under:- (1) Any person claiming refund of any tax and interest, if any, paid on such tax or any other amount paid by him, may make an application before the expiry of two years from the relevant date in such form and manner as may be prescribed: Provided that a registered person, claiming refund of any balance in the electronic cash ledger in accordance with the provisions of sub-secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to furnish any documentary and other evidences but he may file a declaration, based on the documentary or other evidences available with him, certifying that the incidence of such tax and interest had not been passed on to any other person. (5) If, on receipt of any such application, the proper officer is satisfied that the whole or part of the amount claimed as refund is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund referred to in section 57. Rule 89 of the CGST Rules, 2017 also provides that (1) Any person, except the persons covered under notification issued under section 55, claiming refund of any tax, interest, penalty, fees or any other amount paid by him, other than refund of integrated tax paid on goods exported out of India, may file an application electronically in FORM GST RFD-01* through the common portal, either directly or through a Facilitation Centre notified by the Commissioner : 8. I find that as per Section 54(1) of the Central Goods and Service Tax Act, 2017 and as per Rule 89(1) of the Central Goods and Service Tax, 2017 for making a refund claim a person should first have to pay/deposit the tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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