9911796707
TMI Blog2022 (5) TMI 347X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner for Rs.4,70,400/- for release of goods pursuant to the order dated 30.12.2017 under Section 129 (3) of the U.P. Goods and Service Tax Act, 2017, mistakenly shown the deposit under the aforesaid Act instead of IGST Act and further committed a manifest error whether deliberately or otherwise, to deposit the aforesaid amount by creating a temporary ID at its own, without informing any relevant fact or password etc. to the petitioner. Therefore, it was wholly impossible for the petitioner to apply online for refund under Section 54(1) of the Act read with Rule 89 of the Rules. It is well settled that law does not compel a man to do what he cannot possibly perform. Under the circumstances, the petitioner admittedly moved a refund application dated 09.07.2018 in physical form for refund of the aforesaid amount pursuant to appellate order dated 30.06.2018 and also enclosed a copy of the appellate order along with the refund application. As per own admitted case of the respondents, they themselves firstly proceeded arbitrarily and deposited the amount received from the petitioner, by creating a temporary ID and did not give access to the petitioner to the said ID and even th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay interest to the petitioner within a month from today, for the period from 09.09.2018 to 31.03.2022, at the rate notified under Section 56 of the Act - Petition allowed. - Writ Tax No. - 419 of 2022, 424 of 2022 - - - Dated:- 27-4-2022 - Hon'ble Surya Prakash Kesarwani And Hon'ble Jayant Banerji JJ. For the Petitioner : Pooja Talwar For the Respondent : C.S.C. ORDER 1. Heard Ms. Pooja Talwar, learned counsel for the petitioner and learned Additional Chief Standing Counsel for the State-respondents. 2. Personal affidavit of respondent no.1 dated 25.04.2022 has been filed today, which is taken on record. 3. The aforesaid two writ petitions have been filed praying for the following reliefs:- Reliefs as prayed in Writ-Tax No.419 of 2022 Reliefs as prayed in Writ-Tax No.424 of 2022 (a) Issue a writ, order or direction in the nature of MANDAMUS directing the respondent no.3 and respondent no.2 to refund the amount of security of Rs.4,70,400/- deposited in the form of Draft under Section 129 (1) of the U.P. Goods and Service Tax Act, 2017 due to the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner, Mobile Squad Unit-5, State Tax, Jhansi and an order dated 30.12.2017 under Section 129(3) of the Uttar Pradesh Goods and Service Tax Act, 2017 (hereinafter referred to as the 'Act, 2017) was passed demanding tax of Rs.2,35,200/- and penalty of equal amount, total Rs.4,70,400/-, for release of goods. Although the petitioner is a registered dealer and all particulars relating to him were well mentioned in the accompanying invoice and other documents, yet the aforesaid Assistant Commissioner, Mobile Squad Unit created at its own a temporary ID and released the goods on deposit of the aforesaid demanded amount by the petitioner by an account payee bank draft. 6. Against the aforesaid order dated 30.12.2017 under Section 129(3) of the Act, 2017, the petitioner filed an appeal under Section 107 of the Act, 2017 before the appellate authority, which was allowed by order dated 30.06.2018. Thereafter, the petitioner moved a refund application dated 09.07.2018 alongwith a copy of the appellate order (received by the respondent no.3 on 11.07.2018) incorporating therein the operative portion of the appellate order, which is reproduced below:- 7. Since th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt no.3 including the applications dated 27.07.2021 and 14.02.2022 requesting for password and also to guide how his amount shall be refunded. However, nothing has been done by the respondents so far, as evident from the instructions dated 07.03.2022 produced today by the learned Standing Counsel which further shows that the respondents have attempted to mislead the Court and very conveniently suppressed the facts aforementioned. Under the circumstances, we direct the respondent no.1 to file counter affidavit by means of his personal affidavit and show cause that why exemplary cost be not imposed. Put up as a fresh case before the appropriate bench on 04.04.2022. 12. It is only after this Court passed the order, the refund was sanctioned to the petitioner on 31.03.2022 and it was paid on 04.04.2022 . 13. On 04.04.2022, the following order was passed by this Court :- 1. Heard Ms. Pooja Talwar, learned counsel for the petitioner and learned Standing Counsel for the State-respondents. 2. On 28.03.2022, this Court passed the following order:- Heard learned counsel for the petitioner and learned Standing Counsel for the respondents. A sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hows that the said letter appears to have been procured to get the writ petition dismissed as withdrawn so that adjudication on merits may not take place and the question as posed by the Court in its order dated 28.03.2022 with regard to the imposition of exemplary cost may not be adjudicated . 6. Considering the facts and circumstances of the case, we direct the respondent no.1 to file his personal affidavit explaining the circumstances and the procurement of the aforequoted letter, within three days from today. 7. Put up as a fresh case before the appropriate Bench on 07.04.2022 alongwith the records of Writ-Tax No.424 of 2022. (emphasis supplied) 14. Since in the aforequoted order dated 04.04.2022, this Court noticed that certain letters have been procured by the respondent so as to avoid to comply with the direction given in paragraph 5 of the order of this Court dated 04.04.2022, the respondent no.1 filed her personal affidavit dated 06.04.2022 stating in paragraph 5, as under :- 5. That in reply to the same, the Additional Commissioner Grade- 1, Commercial Tax, Jhansi has informed that the said letter has been given by the petitioner' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r consideration by this Court. The personal affidavit may be filed on or before the next date fixed. 6. Put up as a fresh case for further hearing on 27.04.2022 at 10:00 a.m. alongwith connected writ petition. (emphasis supplied) 17. Today, a personal affidavit of the respondent no.1 dated 25.04.2022 has been filed in which the respondent no.1 has stated in paragraphs 12 to 21 as under :- 12. That on 09.07.2018 the petitioner gave his letter for refund due to appellate order but file RFD-01A on common portal nor did he informed the proper officer that there was any technical issue for filing of RFD-01A which is a mandatory requirement as per Rule 89(1) and 97A of CGST/UPGST Rules, 2017. For kind perusal of this Hon'ble Court true copy of Form RFD-01A is being appended herewith and marked as Annexure-8 to this affidavit. 13. That again on 09-12-2020 and on 21-01-2021 reminder letter was given by the petitioner before the proper officer and in turn proper officer duly communicated to the petitioner that he should file online application in format (RFD-01) on the common portal but it was not complied with. 14. That on request of the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of the sum of Rs.4,70,400/- made by the petitioner pursuant to the order dated 30.12.2017 passed by the respondent No.3 under Section 129 of the U.P. GST Act, 2017, even though he was well aware of the fact that the petitioner is a registered dealer of Gujrat State and the provisions of IGST Act are applicable and all details relating to petitioner were available with him and there was no need to create a temporary I.D.. The password of the temporary I.D. created by the respondent No.3 was never communicated to the petitioner despite repeated demands made by him which fact is further evident from own letters of the respondents quoted in paragraphs 7 and 9 of this judgment and paragraph-16 of the personal affidavit of the respondent No.1 dated 25.04.2022 quoted in paragraph 17 of this judgment. The appellate authority, by order dated 30.06.2018, not only allowed the appeal of the petitioner and set aside the order dated 30.12.2017 passed by the respondent No.3, but also directed for refund of the amount/ bank guarantee deposited by the petitioner. The petitioner moved the application dated 09.07.2018 for refund before the respondent No.3 along with a copy of the order of the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 54 and 56 of the C.G.S.T. Act and Rule 89 of the C.G.S.T. Rules provides for refund, which are reproduced below: Section 54. Refund of tax (1) Any person claiming refund of any tax and interest, if any, paid on such tax or any other amount paid by him, may make an application before the expiry of two years from the relevant date in such form and manner as may be prescribed : PROVIDED that a registered person, claiming refund of any balance in the electronic cash ledger in accordance with the provisions of sub-section (6) of section 49, may claim such refund in the return furnished under section 39 in such manner as may be prescribed. (2) A specialised agency of the United Nations Organisation or any Multilateral Financial Institution and Organisation notified under the United Nations (Privileges and Immunities) Act, 1947, Consulate or Embassy of foreign countries or any other person or class of persons, as notified under section 55, entitled to a refund of tax paid by it on inward supplies of goods or services or both, may make an application for such refund, in such form and manner as may be prescribed, before the expiry of six months from the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or refund on account of zero-rated supply of goods or services or both made by registered persons, other than such category of registered persons as may be notified by the Government on the recommendations of the Council, refund on a provisional basis, ninety per cent. of the total amount so claimed, excluding the amount of input tax credit provisionally accepted, in such manner and subject to such conditions, limitations and safeguards as may be prescribed and thereafter make an order under sub-section (5) for final settlement of the refund claim after due verification of documents furnished by the applicant. (7) The proper officer shall issue the order under sub-section (5) within sixty days from the date of receipt of application complete in all respects. (8) Notwithstanding anything contained in sub-section (5), the refundable amount shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to - (a) refund of tax paid on export exports of goods or services or both or on inputs or input services used in making such zero-rated supplies 1 export and exports ; (b) refund of unutilised input tax credit under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all, notwithstanding anything contained in section 56, be entitled to interest at such rate not exceeding six per cent. as may be notified on the recommendations of the Council, if as a result of the appeal or further proceedings he becomes entitled to refund. (13) Notwithstanding anything to the contrary contained in this section, the amount of advance tax deposited by a casual taxable person or a non-resident taxable person under sub-section (2) of section 27, shall not be refunded unless such person has, in respect of the entire period for which the certificate of registration granted to him had remained in force, furnished all the returns required under section 39. (14) Notwithstanding anything contained in this section, no refund under subsection (5) or sub-section (6) shall be paid to an applicant, if the amount is less than one thousand rupees. Explanation.-For the purposes of this section, (1) refund includes refund of tax paid on zero-rated supplies of goods or services or both or on inputs or input services used in making such zero-rated supplies, or refund of tax on the supply of goods regarded as deemed exports, or refund of unutilised in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 54 to any applicant is not refunded within sixty days from the date of receipt of application under sub-section (1) of that section, interest at such rate not exceeding six per cent. as may be specified in the notification issued by the Government on the recommendations of the Council shall be payable in respect of such refund from the date immediately after the expiry of sixty days from the date of receipt of application under the said sub-section till the date of refund of such tax: PROVIDED that where any claim of refund arises from an order passed by an Adjudicating Authority or Appellate Authority or Appellate Tribunal or court which has attained finality and the same is not refunded within sixty days from the date of receipt of application filed consequent to such order, interest at such rate not exceeding nine per cent. as may be notified by the Government on the recommendations of the Council shall be payable in respect of such refund from the date immediately after the expiry of sixty days from the date of receipt of application till the date of refund. Explanation: For the purposes of this section, where any order of refund is made by an Appellate Author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure 1 in Form GST RFD-01 , as applicable, to establish that a refund is due to the applicant, namely:- (a) the reference number of the order and a copy of the order passed by the proper officer or an appellate authority or Appellate Tribunal or court resulting in such refund or reference number of the payment of the amount specified in sub- section (6) of section 107 and sub-section (8) of section 112 claimed as refund; (b) a statement containing the number and date of shipping bills or bills of export and the number and the date of the relevant export invoices, in a case where the refund is on account of export of goods; (c) a statement containing the number and date of invoices and the relevant Bank Realisation Certificates or Foreign Inward Remittance Certificates, as the case may be, in a case where the refund is on account of the export of services; (d) a statement containing the number and date of invoices as provided in rule 46 along with the evidence regarding the endorsement specified in the second proviso to sub-rule (1) in the case of the supply of goods made to a Special Economic Zone unit or a Special Economic Zone developer; (e) a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny other amount claimed as refund has not been passed on to any other person, in a case where the amount of refund claimed exceeds two lakh rupees: PROVIDED that a certificate is not required to be furnished in respect of cases covered under clause (a) or clause (b) or clause (c) or clause (d) or clause (f) of sub- section (8) of section 54; Explanation. For the purposes of this rule- (i) in case of refunds referred to in clause (c) of sub-section (8) of section 54, the expression invoice means invoice conforming to the provisions contained in section 31; (ii) where the amount of tax has been recovered from the recipient, it shall be deemed that the incidence of tax has been passed on to the ultimate consumer. (3) Where the application relates to refund of input tax credit, the electronic credit ledger shall be debited by the applicant by an amount equal to the refund so claimed. (4) In the case of zero-rated supply of goods or services or both without payment of tax under bond or letter of undertaking in accordance with the provisions of sub-section (3) of section 16 of the Integrated Goods and Services Tax Act, 2017 (13 of 2017), refun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailed the benefit of the Government of India, Ministry of Finance, notification No. 48/2017- Central Tax, dated the 18th October, 2017 published in the Gazette of India, Extraordinary, Part II, Section 3, Sub- section (i), vide number G.S.R 1305 (E) dated the 18th October, 2017, refund of input tax credit, availed in respect of other inputs or input services used in making zero-rated supply of goods or services or both, shall be granted. (4B) Where the person claiming refund of unutilised input tax credit on account of zero rated supplies without payment of tax has (a) received supplies on which the supplier has availed the benefit of the Government of India, Ministry of Finance, Notification No. 40/2017- Central Tax (Rate), dated the 23rd October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1320 (E), dated the 23rd October, 2017 or Notification No. 41/2017-Integrated Tax (Rate), dated the 23rd October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1321(E), dated the 23rd October, 2017; or (b) availed the benefit of Notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or whether deliberately or otherwise, to deposit the aforesaid amount by creating a temporary ID at its own, without informing any relevant fact or password etc. to the petitioner. Therefore, it was wholly impossible for the petitioner to apply online for refund under Section 54(1) of the Act read with Rule 89 of the Rules. It is well settled that law does not compell a man to do what he cannot possibly perform. Under the circumstances, the petitioner admittedly moved a refund application dated 09.07.2018 in physical form for refund of the aforesaid amount pursuant to appellate order dated 30.06.2018 and also enclosed a copy of the appellate order along with the refund application. Since then, the petitioner who is based in the State of Gujrat has been running from pillar to post to get the refund as is evident from the facts briefly noted in paragraph-6 to 10 of this judgment. The respondents themselves have forgotten the password of the temporary ID and, therefore, could not provide it to the petitioner as is evident from their own letter dated 16.07.2021 referred in the order dated 28.03.2022 passed by this court (quoted in paragraph-11 above). The fact that the petitioner was c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus, the relevant date as per explanation 2(d) of the explanation appended to Section 54 of the Act, 2017 is 09.07.2018, i.e. date of communication of the appellate order. As per the proviso to Section 56 of the Act, 2017, where the appellate order has attained finality and refund arisen therefrom is not refunded within sixty days from the date of receipt of application filed consequent to such order, interest at such rate not exceeding 9% as may be notified by the Government on the recommendations of the Council shall be payable in respect of such refund from the date immediately after the expiry of sixty days from the date of receipt of application till the date of refund. Thus, the amount refunded by the respondents pursuant to the appellate order dated 30.06.2018 communicated on 09.07.2018, the interest shall be liable to be paid by the respondents to the petitioner for the period from 09.09.2018 to 31.03.2022. 26. In the present set of facts, the respondents have committed wrong firstly by not showing the deposit under IGST Act, secondly by showing the deposit by creating temporary ID at its own and thirdly , not informing the petitioner the password for the te ..... X X X X Extracts X X X X X X X X Extracts X X X X
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