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TMI Blog2021 (10) TMI 630X X X X Extracts X X X X X X X X Extracts X X X X ..... makes an application for the grant of the same. The language of the provision is clear and does not contain, or admit of any restriction in its operation. On a combined reading of Section 54 and Rule 89, the restriction which has been read into the provision by the Revenue is, in my view, misplaced. In fact, the Officer in the impugned order proceeds on the basis that the second proviso to Rule 89 deploys the word 'only', which is not found in the second proviso. It is a settled position that there can be no insertion of a word or phrase in a statutory provision or in a Rule which must be read and applied, as framed. No restrictions or amplifications of the Rule are permissible by interpretation. Quantification of the refund - HELD THAT:- This is a matter of fact which the petitioner will have to establish before the respondent. This aspect of the matter finds reference in Section 54(4), extracted earlier in this order, which provides for the refund application to be comprehensive and accompanied by all relevant documentary evidence in support of the claim. The petitioner will appear before the 2nd respondent on a date to be fixed by the authority and provide all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t may, the impugned orders-in-original have come to be passed by the 1st respondent as against which the petitioner filed appeals before the 1st respondent, that have also come to be rejected. Appellate orders dated 07.08.2020 are the subject matter of the present writ petitions. 6. The issue for resolution has been crystallized at para 5 of the impugned order as to 'whether a SEZ unit is eligible to claim refund of unutilized Input Tax Credit (ITC)'. The authority refers to the provisions of Section 54 of the CGST Act dealing with applications for refund and Rule 89 (1) of the Central Goods and Services Tax Rules, 2017 (CGST Rules) under Chapter X thereof, which deal with the procedure for disposal of applications seeking refund of tax, interest, penalty fees or other amounts. 7. The conclusion at para 7.1 is based upon a reading of the provisions of the Provisions/Rules aforesaid, to the effect that an application for refund would be maintainable only if filed by the supplier of goods or services and not by any other entity including the recipients of the services, such as the petitioner SEZ before me. 8. According to the learned counsel for the petitioner, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the common portal, either directly or through a Facilitation Centre notified by the Commissioner: Provided that any claim for refund relating to balance in the electronic cash ledger in accordance with the provisions of sub-section (6) of section 49 may be made through the return furnished for the relevant tax period in FORM GSTR-3 or FORM GSTR-4 or FORM GSTR-7,as the case may be: Provided further that in respect of supplies to a Special Economic Zone unit or a Special Economic Zone developer, the application for refund shall be filed by the (a) supplier of goods after such goods have been admitted in full in the Special Economic Zone for authorized operations, as endorsed by the specified officer of the Zone; (b) supplier of services along with such evidence regarding receipt of services for authorized operations as endorsed by the specified officer of the Zone: .......... (2) The application under sub-rule (1) shall be accompanied by any of the following documentary evidences in Annexure 1 in FORM GST RFD-01, as applicable, to establish that a refund is due to the applicant, namely:- ........ (2) The application under sub-rule ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of supply of goods regarded as deemed exports where a refund of tax paid is available in respect of the goods, the date on which the return relating to such deemed exports is furnished; (c) in the case of services exported out of India where a refund of tax paid is available in respect of services themselves or, as the case may be, the inputs or input services used in such services, the date of (i) receipt of payment in convertible foreign exchange, 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 unutilized input tax credit under sub-section (3), the end of the financial year 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guage of the provision is clear and does not contain, or admit of any restriction in its operation. 15. Clause (h) of the explanation stipulates what the relevant date for purposes of making the application is, in the case of a person other than a supplier of goods and services. Clause (h) is a residuary Clause which states that the date of payment of tax is the relevant date in the case of any goods not covered by Clauses (a) to (g) of Clause (2) of the explanation. Thus, the statutory scheme for refund admits of applications to be filed by any entity that believes that it is so entitled, including the petitioner SEZ. The language of Rule 89, echoes that of Section 54, and both the aforesaid provision and Rule commence with the phrase 'any person'. The only exclusion is of the person covered under a notification issued under Section 55, admittedly inapplicable to the petitioner. 16. Learned Senior Standing Counsel has taken me through Rule 89, particularly, the second proviso thereto, as well as Clause (f) of sub-Rule 2, which refer to an application filed by a supplier to a SEZ. This, according to her, would indicate that an application for refund should only be f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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