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TMI Blog2022 (1) TMI 696X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of wrongly or mistakenly reversed of the credit does not arise. Further, there is no doubt that the Input Tax Credit is nothing but it is tax only as per the provisions of the GST Act. Eligible Input Tax Credit lying in the Credit Ledger are utilized for payment of tax liabilities only. In the instant case transitional credit were availed as valid/eligible credit and some part of the credit were reversed by the appellant as a tax only. Therefore, the appellant s contention that the reversal of credit is in nature of pre-deposit, is not acceptable at this stage and I find it is an afterthought of the appellant to avail the benefit of refund. Whether limitation period for filing of refund provided under Section 54 of CGST Act is applicable or not? - HELD THAT:- As it is already held that the reversal of ITC is a tax only it may not be termed as deposit/pre-deposit. These said amount were admittedly reversed by the appellant themselves by treating the same as tax only. Further, it is found that the appellant had applied for refund by adopting the procedure as prescribed under Section 54 of CGST Act read with Rule 89 of CGST Rules, 2017 therefore, there are no force in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f GST amount wrongly paid on direction of department. Refund rejection amounting to ₹ 5,83,251/- 2 APPL/JPR/ CGST/JP/ 154/XII/ 2020/ ZQ0808200332186, dated 24-8-2020 Appellant has filed refund claim under Section 54(1) of the CGST Act, 2017 for the period February, 2018 in respect of wrongly paid on direction of department. Refund rejection amounting to ₹ 10,89,495 2. Brief facts of the case : 2.1 Brief facts of the case are that the appellant having GSTIN 08AAEFT4933H1Z1 has filed the applications for refund vide GST-RFD-01 with ARN No. AA0807200737253, dated 29th July, 2020, and AA080720073669T, dated 29th July, 2020, respectively, under Section 54(1) of the CGST Act, 2017 for the period and amount mentioned in Para-1 above in column Nos. 4 5. 2.4 Further, the adjudicating authority has issued Form GST RFD-08 vide reference No. ZN0808200097042 and ZU0808200097097, both dated 7-8-2020 with reason Delay in Refund Application and given a Remark : The refund appears to be time barred in terms of Section 54(1) of CGST Act, 2017 as reversal was mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e departmental Audit. Therefore, the reversal/payment of impugned amount by them cannot acquire the colour of legitimate levy of CGST as the tax can be levied and collected only under the authority of law as provided in Constitution of India. Since, the amount of ₹ 5,83,251.00 and ₹ 10,89,495.00 was not required to be deposited, therefore, the same cannot be termed tax (CGST) and hence, to be considered a deposit with the Government. (A.2) The appellant further submits that since, the amount of ₹ 5,83,251.00 and ₹ 10,89,495.00 cannot be termed tax (CGST), therefore, the provisions for refund of CGST as prescribed under Section 54 of the CGST Act, 2017 do not apply to refund of said amount, which, essentially is in the nature of deposit . That being so, the refund of impugned amount of ₹ 5,83,251.00 and ₹ 10,89,495.00 being deposit with the Government, 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). The appellant accordingly submits that the Ld. AC has erred in rejecting the refund claim of the amount of ₹ 5,83,251.00 and ₹ 10,89,495.00 on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s International v. UOI [2016 (339) E.L.T. 21 (Guj.) (Paras 12.1, 14.4)] Indo-Nippon Chemicals Co. Ltd. v. Union of India reported at 2005 (185) E.L.T. 19 (Guj.). In view of the cited judgment in the case of Indo-Nippon Chemicals, the appellant submits that the relevant date in the present case should be the date of discovery of mistake i.e. (17-9-2019, i.e. the date of completion of departmental audit) and not the date of reversal of credit (i.e. 1-2-2018). The refund claim filed on 29-7-2020 is accordingly within the specified time-limit of 2 years from the relevant date (i.e. 17-9-2019), hence, deserves to be allowed, setting aside the impugned OIO appealed against. 4. Personal hearing in both the appeals was held on 19-6-2021 through virtual mode as both the appeals are similar in nature therefore, both the appeals have been taken simultaneously. Shri Ajay Kumar Mishra, Authorized Representative, has appeared on behalf of the appellant. He explained the grounds of appeal in details and reiterated the written submission during personal hearing. In view of above submission, he requested for decision in the appellant favour. 5. I have gone through the facts of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 107(1) of the CGST Act, 2017 - Any person aggrieved by any decision or order passed under GST Act by an adjudicating authority may file appeal to Appellate Authority within three months from the date of communication of such decision or order. On going through the Appeal Memo, it has been observed that the said orders were communicated to the appellant on 26-8-2020 and 24-8-2020 and appeal filed in the instant matter to this office on 14-12-2020 which is delayed by 18 days and 20 days from the prescribed time limit as provided under Section 107(1) of the CGST Act. However, considering the unavoidable circumstances, I am inclined to condone the delay in accordance with Section 107(4) of the CGST Act, 2017 and accordingly I proceeded to decide the case on merits. (a) Whether amount for which refund was filed, is in the nature of Pre-deposit or Tax? (b) Whether limitation period for filing of refund provided under Section 54 of CGST Act is applicable or not? (c) Whether date of reversal/payment of credit will be the relevant date for the purpose of limitation clause or not? In respect of issue mentioned at Point No. (a) - The appellant submitted that it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lities only. In the instant case transitional credit were availed as valid/eligible credit and some part of the credit were reversed by the appellant as a tax only. Therefore, the appellant s contention that the reversal of credit is in nature of pre-deposit, is not acceptable at this stage and I find it is an afterthought of the appellant to avail the benefit of refund. (b) In respect of issue involved at Point No. (b) above - The appellant contended that the reversal of credit cannot be termed as tax, therefore, the provisions for limitation clause as prescribed under Section 54 of CGST Act, will not apply in the instant case. As discussed at Point No. (a) that the reversal of ITC is a tax only it may not be termed as deposit/pre-deposit. These said amount were admittedly reversed by the appellant themself by treating the same as tax only. Further, I find that the appellant had applied for refund by adopting the procedure as prescribed under Section 54 of CGST Act read with Rule 89 of CGST Rules, 2017 therefore, I do not find force in the appellant s contention that the limitation clause of Section 54 of CGST Act, 2017 will not be applied. The appellant has also placed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has assumed by his own and filed the refund for the same. Therefore, I do not agree with the contention of the appellant that it was the case of mutual mistake accordingly, I do not find applicability of the cited judgments in the instant case. Further, I find that the appellant has filed the refund application under the category of Any Other accordingly, the clause ( h ) of sub-section (14)(2) of Section 54 of CGST Act, will be applicable for determination of relevant date in the instant case. On going through the Statement of Facts submitted by the appellant, I find that the date of reversal of ITC were on 1-2-2018 and 2-2-2018 whereas, the said refund claims was filed on 29-7-2020 which is explicitly/clearly beyond the expiry of two years from the relevant date. The appellant also mentioned in the statement of facts as well as on application of refund that original refund claim filed on 7-12-2019 in Form PMT-04 as manually. In this regard, I find that the PMT-04 is nowhere considered as application of refund in the provisions of GST Laws. The fact is that the PMT-04 is merely an application under Rules 85(7), 86(6) 87(12) of CGST Rules, 2017 for intimation of discrepa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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