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TMI Blog2021 (2) TMI 924X X X X Extracts X X X X X X X X Extracts X X X X ..... t to notice that such opinion is to be formed only if the authority opines that refund will adversely affect the revenue on account of some malfeasance or fraud committed. In this view, it is not only that the opinion of the officer concerned needs to be recorded but that opinion regarding refund adversely affecting the revenue has to be based on some malfeasance or fraud. From a perusal of Part B of FORM GST RFD-07 it is clear that the proper officer or Commissioner has to assign the reasons for withholding the refund. Passing of an order in Part B of FORM GST RFD-07 is a statutory mandate which is binding on the department for the reason that different forms appended with the Rules, 2017 are part of the Rules which are statutory in nature having been framed under section 164 of the Act, 2017 - recording of reasons while passing of the order for withholding the refund is not only statutorily requirement as per the provisions contained in Rule 92(2) of the Rules read with Part B of Form GST RFD-07 and section 54(11) of the Act but it is also required so as to make the person, aggrieved by such an order, realize his right of appeal as available under section 107 of the Act. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CGST Rules, 2017. (d) Issue a writ of mandamus or any other appropriate writ or direction to the respondent no.2 directing to unblock the Electronic Credit Ledger of the petitioner. (e) Issue any other appropriate writ, order or direction which this Hon'ble Court may deem just and necessary in the circumstances of the case may also be passed. The petitioner, thus, appears to be aggrieved by nondisbursement of the provisional refund, non completion of the proceedings to disburse the full refund and also by an order whereby Electronic Credit Ledger of the petitioner has been blocked. Learned counsel representing the respondents, Shri Nag has submitted that after giving due opportunity of hearing to the petitioner the Principal Commissioner, Central Goods and Services Tax and Central Excise has taken a decision on 13.10.2020 whereby it has been ordered that the refund to the petitioner may be withheld till completion of investigation in the case. Since it appeared to us on previous dates of hearing of this matter that no such order or decision was communicated to the petitioner, we required Shri Nag to produce the original file containing the said decision taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd on a provisional basis. The time period provided for passing an order for refund on provisional basis as provided under Rule 91(2) is seven days from the date of the acknowledgment under sub-rule (1) or subrule (2) of the Rule, 90. It has been submitted by the learned counsel for the petitioner that the application was made by the petitioner on 26.05.2020 and after scrutiny, acknowledgment in Form RFD-02 was issued by the department within 2-3 days from the date of submission of the application and as per the statutory requirement of sub rule 2 of rule 91 the proper officer ought to have passed an order regarding provisional refund within seven days, however, despite long period having elapsed since the acknowledgment was issued, no such order has yet been passed. As observed above, the submission of the learned counsel for the respondents is that neither orders sanctioning the provisional refund, nor orders sanctioning final refund in this case has been passed for the reason that the Principal Commissioner vide his decision dated 13.10.2020 has ordered for withholding the refund amount on the ground that some investigation in the case is pending. No doubt, section 54(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is entitled, mentioning therein the amount, if any, refunded to him on a provisional basis under sub-section (6) of Section 54, amount adjusted against any outstanding demand under the Act or under any existing law and the balance amount refundable: Provided that in cases where the amount of refund is completely adjusted against any outstanding demand under the Act or under any existing law, an order giving details of the adjustment shall be issued in Part A of Form GST RFD- 07. [(1-A) Where, upon examination of the application of refund of any amount paid as tax other than the refund of tax paid on zero-rated supplies or deemed export, the proper officer is satisfied that a refund under sub-section (5) of Section 54 of the Act is due and payable to the applicant, he shall make an order in Form RFD-06 sanctioning the amount of refund to be paid, in cash, proportionate to the amount debited in cash against the total amount paid for discharging tax liability for the relevant period, mentioning therein the amount adjusted against any outstanding demand under the Act or under any existing law and the balance amount refundable and for the remaining amount which has been d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per officer is satisfied that the amount refundable under sub-rule (1) [or sub-rule (1-A)] or sub-rule (2) is not payable to the applicant under subsection (8) of Section 54, he shall make an order in Form GST RFD-06 and issue [a payment order] in Form GST RFD-05, for the amount of refund to be credited to the Consumer Welfare Fund. Sub rule 2 of rule 92 as quoted above, requires the proper officer or the Commissioner to pass an order in Part B of FORM GST RFD- 07 , if he is of the opinion that the amount of refund is liable to be withheld under sub section 10 or sub section 11 of section 54, as the case may be. Since GST RFD-07 is appended with the rules and as such the said form also has a statutory force. Part B of FORM GST RFD-07 is also extracted herein below: PART-B ORDER FOR WITHHOLDING THE REFUND This has reference to your refund application referred to above and information/documents furnished in the matter. The amount of refund sanctioned to you has been withheld due to the following reasons: Refund Order No.: Date of issuan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y requirement flowing from section 54(11) of the Act and Rule 92(2) of the Rules and (ii) if any person aggrieved by such an order intends to file an appeal then to facilitate the appellate authority to arrive at a correct decision, reasons are required to be indicated by the subordinate authority. We have already observed above that the entire original record has been perused by the Court. Office file contains the decision dated 13.10.2020 passed by the Principal Commissioner, however, it only says in the facts and circumstances of the case, we may withhold refund till completion of the investigation in the case . The said decision does not assign any other reason regarding on which basis the Principal Commissioner has arrived at his opinion that the refund claimed by the petitioner is likely to adversely affect the revenue in the investigation (which is said to be pending) and such opinion is based on some material indicating some malfeasance or fraud said to have been committed by the petitioner. Moreover, the order as mandated by sub rule 2 of rule 92 has not been passed in Part B of Form GST RFD- 07 which as observed above, also has a column where the officer concerned has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt afresh within 15 days from the date a certified copy of this order is produced before him. (ii) We also provide that the fresh decision under this order shall be taken by the competent authority of the department on the basis of record already available before it as the opportunity to the petitioner had already been provided and the submissions of the petitioner have also been reduced in writing as record of personal hearing . (iii) Once any order under section 54(11) of the Act is passed, keeping in view the observations made herein above, the same shall be communicated to the petitioner forthwith and shall be served upon the petitioner through appropriate mode of service. (iv) The investigation said to be pending against the petitioner shall be expedited and completed as far as possible within a period of four months from today. Once the investigation is completed, the requisite orders for final refund shall also be passed by the competent authority. (v) While deciding the matter afresh under this order, the authority concerned shall also pass an order on the prayer made by the petitioner for provisional refund. (vi) For unblocking of the Electronic Credit Led ..... X X X X Extracts X X X X X X X X Extracts X X X X
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