9911796707
TMI Blog2021 (1) TMI 1168X X X X Extracts X X X X X X X X Extracts X X X X ..... rred application - this notification has given effect from the retrospective effect i.e. 1-7-2017 and accordingly Rule 61(5) of CGST Rules, 2017 providing the GSTR-3B is declared as valid return under Section 39 of the CGST Act, 2017. On going through the provision under Section 54 of the CGST Act, 2017, it is found that the relevant date has been defined in sub-section (14) of Section 54 of the CGST Act, 2017 - the refund application filed by the appellant for the period October, 2017 to December, 2017 is clearly time barred as the same was filed by the appellant on 5-2-2020 i.e. after expiry of 2 years from the relevant date as mentioned in sub-section (14) of Section 54 of the CGST Act, 2017 read with sub-section (1) of Section 54 of the CGST Act, 2017. The Adjudicating Authority has taken a view that formula applied for calculation of Net ITC refund there is no such refund was available to the appellant. In view of provisions of Rule 89(5) of CGST Rules, 2017 - the appellant has not properly gone through the provisions of Section 54 of the CGST Act, 2017 the date and time limit has been clearly mentioned in Section 54(1) read with sub-section (14) of Section 54 of the CGS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-calculation of formula no refund is allowed and directed to the appellant to furnish a reply to show cause notice within fifteen days from the date of service of the notice and also directed to appear for personal hearing on 11-3-2020. Thereafter, the adjudicating authority has passed the impugned Order-in-Original No. ZT0803200162070, dated 11-3-2020 in Form of RFD-06 and rejected the refund claim amounting to ₹ 4,30,000/- with remarks that The claimant is agreed with the SCN that he has no objection with respect to rejection of their refund claim. Accordingly, RFD-06 is being issued . 3. Being aggrieved with the impugned order 11-3-2020, the appellant has filed the appeal on the following grounds :- (1) The following grounds are related to the time period, which explain that we have filed the refund application within due time : (i) As per Section 54(1), refund can be claimed before the expiry of two years from the relevant date. As per clause (e) of Explanation 2 to Section 54 amended by Finance Act, 2018, relevant date of for the purpose of claim of refund of ITC accumulated due to inverted tax structure is the due date of filing of return u/s. 39 for which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of unutilized ITC can be claimed for any tax period and without any time restriction. It is a well settled principal in law that specific section prevails over the general provision therefore when refund is being claimed in specific Section i.e. 54(3) then refund cannot be rejected on ground of expiry of time limit specified in ether Section i.e. 54(1). The amount of IGST was paid in cash on import of goods and the business has also been discontinued to closure of business Therefore, the duty paid in cash is lied with Government, which means that an asset is kept lying with the government and we have every right to claim the same. 4. Personal Hearing in the case was held on 18-12-2020 through video conference, wherein Shri Amit Vijay, Chartered Accountant appeared for personal hearing through video conference. He explained the grounds of appeal in detail and requested for early decision in the matter. 5. I have carefully gone through the case records, and written submission made in the appeal memo as well as oral submissions made at the time of personal hearing. Accordingly, I proceeded to decide the case. Before embarking on the issue it would be appropriate to re-produce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id is available in respect o' goods themselves or, as the case may be, the inputs or input services used in such goods, - (i) if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India; or (ii) if the goods are exported by land, the date on which such goods pass the frontier; or (iii) if the goods are exported by post, the date of despatch of goods by the Post Office concerned to a place outside India; (b) in the 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 [or in Indian rupees wherever permitted by the Reserve Bank of India], where the supply of services had been completed prior to the receipt or such payment; or (ii) issue of invoice, where payment for the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ks in the RFD-06 that the claimant is agreed with the show cause notice that he has no objection with respect to rejection of their refund claim. Therefore, I am of the view that rejection of refund claim of the appellant is correct and proper as appellant was himself agreed with the reason of show cause notice issued by the adjudicating authority. Further, I find that the appellant has taken a plea that since GSTR-3B was declared as valid return under Section 39 of the CGST Act, 2017 Vide Notification No. 49/2019-Central Tax, dated 9-10-2019 hence, application of refund was duly filed by him before expiry of two years from the relevant date when the said notification came into force on 9-10-2019; Therefore, the refund application filed by him within 2 years from the date of 9-10-2019 is valid application and not a time barred application. In this context I find that appellant has misinterpreted the above notification and construe that two years date should be taken from the date of notification issued. While on going through the said notification. I find that this notification has given effect from the retrospective effect i.e. 1-7-2017 and accordingly Rule 61(5) of CGST Rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
