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TMI Blog2021 (7) TMI 1164X X X X Extracts X X X X X X X X Extracts X X X X ..... he goods/the supplier of zero-rated supplies. The appellant filed his refund for zero-rated supplies being an exporter of Garments for the month of Feb., 2018 vide ARN No. AA0801200322422, dated 22-1-2020. The appellant was issued a deficiency memo on 28-1-2020 vide ARN AA080120043271Y. The appellant therefore, again filed the new application of refund vide ARN No. AA080120043271Y, dated 28-1-2020 under the head "Any Other Refund". The same was acknowledged by the department on 12-2-2020. However, a SCN No. ZO0802200237580, dated 19-2-2020 was issued to the appellant. The SCN number was appearing on the Common Portal but the appellant was unable to download the same, On discussion with the Superintendent Range 27, CGST Division F, Jaipur, the appellant came to know that this SCN was issued to the appellant as the appellant did not furnish the DRC-03 as required in case where the refund is applied again after issuance of deficiency memo. The appellant on the same day i.e. 19-2-2020 filed a form DRC-03 and submitted the same with a form RFD-09 requesting to release the refund. The jurisdictional Assistant Commissioner has passed the refund sanctioned/rejection order vide Order No. ZY ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the SCN by the Ld. AC. The said form was filed on the Common portal. (2.3) The said fact that the form DRC-03 was not considered by the Ld. AC and the amount was debited by the appellant. That such non- consideration of fact by the Ld. Officer makes the order completely illegal. As an Adjudication authority is required to pass a speaking order taking into record all the facts and allegation of the case as per the SCN and the replies or submissions made by the assessee. Without consideration of facts an opinion cannot be formed by the officer. Thus such an order passed without considering the response in form RFD-09 submitted by the appellant is clearly illegal and liable to be set aside. (2.4) A reference is invited to Rule 90(3) in this regard which requires as follows :- Rule 90(3) Where the proper officer is satisfied, for reasons to be recorded in writing, that the whole or any part of the amount claimed as refund is not admissible or is not payable to the applicant, he shall issue a notice in FORM GST RFD-08 to the applicant, requiring him to furnish a reply in FORM GST RFD-09 within a period of fifteen days of the receipt of such n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmunication at all. As already discussed in Ground 1 above the order also needs to be communicated to the assessee in the manner prescribed by Sec. 169. Thus in the absence of such proper communication the order cannot be binding on the appellant and liable to be set aside. 4. Personal hearing in virtual mode through video conference was held on 22-12-2020. Shri Ranjan Mehta, Authorised Representative appeared on behalf of the appellant and explained the case. Shri Mehta reiterated grounds of appeal during oral submission and also emphasized the written submission dated 16-12-2020 wherein it is again stated that :- (A) The SCN was not effectively communicated to the appellant, thus there cannot be any rejection on the basis of such SCN. (A.1) The appellant is a manufacturer and exporter of garments, applied for refund for the month of February, 2018, vide ARN No. AA0801200322422, dated 22-1-2020. That the Department issued deficiency memo for incompleteness, and amount debited from the Electronic Cash Ledger was reverted back. (A.2) Further, the assessee filed new application of refund ARN No. AA080120043271Y, dated 28-1-2020 under the head "Any Other Refund" as per the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee. Without consideration of facts an opinion cannot be formed by the officer. Thus, such an order passed without considering the response in form RFD-09 submitted by the appellant is clearly illegal and liable to be set aside. (B.4) A reference is invited to Rule 90(3) in this regard which requires as follows :- "Rule 90(3) Where the proper officer is satisfied, for reasons to be recorded in writing, that the whole or any part of the amount claimed as refund is not admissible or is not payable to the applicant, he shall issue a notice in FORM GST RFD-08 to the applicant, requiring him to furnish a reply in FORM GST RFD-09 within a period of fifteen days of the receipt of such notice and after considering the reply, make an order in FORM GST RFD-06 sanctioning the amount of refund in whole or part, or rejecting the said refund claim and the said order shall be made available to the applicant electronically and the provisions of sub-rule (1) shall, mutatis mutandis, apply to the extent refund is allowed : Provided that no application for refund shall be rejected without giving the applicant an opportunity of being heard." (B.5) From the above rule it is ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D-08) was issued by the Proper Officer i.e. Assistant Commissioner, Division-F, Jaipur on 19-2-2020 and served the same through Common Portal. It is found that the same could not be download by the appellant. However, the appellant through his vigil efforts gathered the information and filed the reply to show cause notice (GST RFD-09) incorporating the fact that an amount of Rs. 7,62,291/- has been debited vide DRC-03, dated 19-2-2020 to claim of refund amount as per procedure laid down under Circular No. 125/44/2019, dated 18-11-2019. 6. Further, I find that the appellant only received the e-mail dated 26-2-2020 stating that 'This mail is in reference to the AA080120043271Y; 26-2-2020 filed by you. Sanction Order RFD-06/ZY0802200326224/26-2-2020 has been issued for above mentioned refund application.' And has not received the refund order i.e. RFD-06 (ZY0802200326224, dated 26-2-2020) issued by the Proper Officer i.e. Assistant Commissioner, Division-F, Jaipur. 7. In view of above, it is deduced that the appellant was neither received the Show cause notice (RFD-08) in appropriate manner nor got the opportunity of being heard to put their submission before the proper of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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