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TMI Blog2021 (6) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... ms of Section 54 of the CGST Act, 2017 or not? - HELD THAT:- Any kind of refund s governed by Section 54 of CGST Act read with Rule 89 of CGST Rules, 2017, and procedure for filing of refund application has been given in the said section and rules only. Therefore, refund under Section 77 will also govern under Section 54 of CGST Act, 2017. Accordingly, period for filing of refund in such cases will be apply as per Section 54 and relevant date will also be taken as per this provisions only - contention of the appellant that the time limit has not been provided in Section 77 of CGST Act read with Section 19 of IGST Act, 2017 for filing of refund application is not acceptable. Whether principle of natural justice has been fallowed in the instant case or not? - HELD THAT:- Proper officer has issued show cause notice in Form of GST RFD-08 and personal hearing was also granted by him to the appellant - On perusal of the screen shot of the portal it is found that the show cause notice as well as rejection order were communicated to the appellant through common portal. Further the same fact was also intimated to the appellant vide letter dated 12-6-2020 by the jurisdictional Asstt. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns, the Proper Officer issued a show cause notices in Form of GST-RFD-08, dated 2-3-2020 proposing therein rejection of refund claims on the ground of limitation. 2.3 Further, the Adjudicating Authority has passed the Orders-in-[Original] No. in Form of RFD-06, dated 6-4-2020 and rejected both the refund claims filed by the appellant as mentioned above in Para 1 of above table on the ground of time bar issue under Section 54 of the CGST Act, 2017 giving the following details : In both the refund claim show cause notice were issued on 2-3-2020 and accordingly you were filed reply to SCN in RFD-09 on 1-4-2020 and failed to appeal in personal hearing on the day fixed for that purpose along with the SCN. After considering your reply to SCN the undersigned passed the following order on 6-4-2020 in both the cases. As per section 54 of CGST Act, 2017 refund may be filed within two year from the date of duty payment. Claimant failed to do so within prescribe time. Hence without going on merits, I reject the refund claim as time bar under Sec. 54 of CGST Act. The same has also been uploaded on GST portal 6-4-2020. 3. Being aggrieved with the impugned orders, the appellant has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is undisputed that they were required to pay IGST of ₹ 33,458.40 only for the month of Sept., 2017 against which they had paid ₹ 5.75,655.00 resulting into excess payment of ₹ 5,42,196.60. The appellant further submits the said excess amount of ₹ 5,42,96.60 cannot be termed tax (IGST) and hence, to be considered a deposit with the Government and does not attract the limitation clause as provided in Section 54 of the CGST Act, 2017 as the same applies only to refund of tax (GST). Established position of law that amount paid mistakenly as tax, though, not required to be paid is in the nature of deposit and is required to be refunded without attracting the limitation clause. that the appellant submits that he had mistakenly paid excess amount of IGST instead of CGST SGST and the latter were also deposited/paid subsequently. It is, therefore, clear that the appellant had paid the excess amount of IGST under mistake of law and they are fully entitled to the refund of same. The appellant has placed various case laws in their defence which are as under :- Union of India v. ITC Limited reported in 1993 (67) E.L.T. 3 (S.C.); K.V.R. Constr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcess IGST for the month of September, 2017 and October, 2017 and the said excess amounts cannot be termed as tax and to be consider as deposit with government. At the outset, the appellant contention could not be accepted looking into the holistic facts of the case. I find that the appellant had offset his liabilities for the month of September to October, 2017 by debiting either from Cash or Credit ledger and accordingly GSTR-3B of the said period filed by him. In view of this facts, it is evident that payment made by the appellant by debiting from their ledger against the tax liabilities only. Hence, it may not be termed as deposit rather it is payment of tax only. The amount lying in ledger can only be considered as deposit or amount, further, the appellant has offset their liability in the tax head i.e. in the head of IGST and there is no doubt that the IGST is a Tax in terms of IGST Act, 2017. In view of the above I hold that the disputed amount paid by the appellant is nothing but it is tax only and it may not be considered as pre-deposit or deposit by any stretch of imagination and further the appellant s contention has not been supported by the provisions of law provided u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or in Indian rupees wherever permitted by the Reserve Bank of India], where the supply of services had been completed prior to the receipt of such payment; or (ii) issue of invoice, where payment for the services had been received in advance prior to the date of issue of the invoice; (d) in case where the tax becomes refundable as a consequence of judgment, decree, order or direction of the Appellate Authority, Appellate Tribunal or any court, the date of communication of such judgment, decree, order or direction; [(e) in the case of refund of unutilised input tax credit under clause (ii) of the first proviso to sub-section (3), the due date for furnishing of return under section 39 for the period in which such claim for refund arises;] (f) in the case where tax is paid provisionally under this Act or the rules made thereunder, the date of adjustment of tax after the final assessment thereof; (g) in the case of a person, other than the supplier, the date of receipt of goods or services or both by such person; and (h) in any other case, the date of payment of tax. 7. On going through the ARN receipt, I find t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication is not acceptable. (c) In respect of issue at Sl. No. (c) : 8. I find that proper officer has issued show cause notice in Form of GST RFD-08 and personal hearing was also granted by him to the appellant. Appellant has submitted his reply in Form of GST RFD-09. The only contention of the appellant' in this regard is that he was not able to retrieve the impugned order as well as show cause notice as it was not available on GST portal. In this context, in reference to this office letter C. No. APPL/JPR/CGST/AL/67/VIII/2020, dated 25-1-2021, the jurisdictional Asstt. Commissioner, CGST Dn-D, Bhiwadi has replied vide his letter dated 27-1-2021 that the then Asstt. Commissioner (Adjudicating Authority) has made comments in comment section on the common portal which has also been shown/reflected on the portal of the taxpayer and he also submitted the screen shot for the same to this office. In view of the comments of the jurisdictional Asstt. Commissioner on this issue and on perusal of the screen shot of the portal I find that the show cause notice as well as rejection order were communicated to the appellant through common portal. Further the same fact was also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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