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TMI Blog2021 (12) TMI 1040X X X X Extracts X X X X X X X X Extracts X X X X ..... r is not payable, he shall issue notice to the applicant requiring filing of reply within 15 days of receipt of notice and after considering the reply make an order sanctioning the amount of refund in whole or in part or rejecting the refund claim which order shall be made available to the applicant. As per the proviso, an application for refund shall not be rejected without giving the applicant an opportunity of being heard. Therefore, there is a clear legal mandate that if an application for refund is to be rejected, the same can only be done after giving the applicant an opportunity of being heard. The expression 'opportunity of being heard' is not an expression of empty formality. It is a part of the well-recognized principle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : Mr. L. Venkateshwar Rao, Representing Mr. K. Raji Reddy, Standing Counsel for the Commercial Tax Department Common Order: (Per Hon ble Sri Justice Ujjal Bhuyan) Though W.P.No.616 of 2020 is not listed today, we have requisitioned the record of the said case, as the subject matter of the said writ petition is identical to that of W.P.No.527 of 2020 and this order will dispose of both W.P.Nos.527 and 616 of 2020. 2. Heard Mr. T.Sruyanarayana, learned counsel for the petitioner and Mr.L.Venkateshwar Rao, learned counsel representing Mr.K.Raji Reddy, learned Senior Standing Counsel for the Commercial Tax Department. 3. Issue relates to rejection of claim of refund of the petitioner. 4. Petitioner is engaged in the business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund shall be rejected without giving the applicant an opportunity of being heard. In this connection, learned counsel for the petitioner has placed reliance on a Division Bench decision of the Bombay High Court in BA CONTINUUM INDIA (P) LIMITED v. UNION OF INDIA (2021) 125 Taxmann.com 180 (Bombay). 7. Despite notice being issued in both the writ petitions on 08.01.2020 and 09.01.2020 respectively, respondent has not filed counter affidavit. 8. Section 54 of the CGST Act deals with refund of tax. Sub-section (1) says that any person claiming refund of any tax and interest may make an application before the expiry of two years from the relevant date in the prescribed form and manner. As per sub-section (5), if on receipt of any s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for refund shall be rejected without giving the applicant an opportunity of being heard . 10. From the above, it is evident that in a case 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, he shall issue notice to the applicant requiring filing of reply within 15 days of receipt of notice and after considering the reply make an order sanctioning the amount of refund in whole or in part or rejecting the refund claim which order shall be made available to the applicant. As per the proviso, an application for refund shall not be rejected without giving the applicant an opportunity of being heard. Therefore, there is a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n all respects. 13. In BA CONTINUUM INDIA (P) LIMITED (supra), the Bombay High Court had elaborately dealt with the aforesaid provision and, in the facts and circumstances of that case, came to the conclusion that as no hearing was granted to the petitioner, rejection of refund order would be in violation of the proviso to sub-rule (3) of Rule 92 of the CGST Rules and also in violation of the principles of natural justice. The contention advanced by the Revenue about availability of alternative remedy of appeal was repelled on the ground that an order, which is in violation of principles of natural justice, would be non est in law. It is settled law that if there is violation of the principles of natural justice, then the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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