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TMI Blog2022 (8) TMI 591X X X X Extracts X X X X X X X X Extracts X X X X ..... espondents that the Petitioner ought to have obtained endorsement certificate much prior to arrival of Covid in India, it is to be noted here that the Petitioner herein has two years time to claim refund and the Petitioner could not have anticipated that the pandemic will sweep the entire country during that period. Therefore, non obtaining endorsement certificate prior to Covid pandemic cannot be a ground to reject the claim. As stated earlier, the Petitioner could not have anticipated the situation and when it thought of making an application within the time prescribed, the entire country was engulfed with pandemic. Rule 112(4) of C.G.S.T. Rules postulate that, nothing contained in the said Rule shall affect the power of the Appellate Authority or the Appellate Tribunal to direct production of any document, or examination of any witness, to enable it to dispose of the appeal. In fact, Section 107(11) of C.G.S.T. Act contemplate that, before disposing of any appeal, the Appellate Authority may make any further inquiry as he thinks fit - However, additional evidence at the appellate stage cane be entertained, at the discretion of the appellate authority, in cases where it can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for refund of input taxes paid, while making zero rated supply, in view of Section 16 of Integrated Goods and Service Tax, 2017, [ I.G.S.T. Act ]. iii. An application for refund came to be made under Section 54 of C.G.S.T Act read with Rule 89 of Central Goods and Service Tax Rules, 2017 [ C.G.S.T. Rules ]. The said application has to be made within a period of two years from the relevant time, but, due to Covid Pandemic, the time limit was extended through Notifications from time-to-time. iv. It is the case of the Petitioner that it has filed the refund claim in Form GST RFD-01 on 28.08.2020 [Form GST RFD-01 on 30.08.2020 in W.P. No. 2478 of 2022] in terms of Section 54 of the C.G.S.T. Act read with Notification No. 35/2020 (Central Tax), dated 03.04.2020, as amended by Notification No.55/2020 (Central Tax), dated 27.06.2020, for supplies made to its recipients, which are in SEZ. An acknowledgment evidencing filing of refund claim was received by the Petitioner. v. It is said that, in order to file a refund claim, the Petitioner approached/corresponded with its recipient viz., the SEZ Units, to obtain endorsement certificates from the specified officer of their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the services provided to SEZ Units for authorized operations. On receipt of the said certificate, the Petitioner submitted the same to Respondent No. 1 by way of additional material on 10.02.2021. The Petitioner attended the hearing on 13.07.2021 through its consultants, wherein, the grounds mentioned earlier, were reiterated. Without taking into consideration the submissions made, the Appeals came to be rejected only on the ground that the Petitioner has not submitted endorsement certificate within the time specified and also along with refund claim. These Orders are sought to be challenged in this Writ Petitions. 4. Counters came to be filed, in both the Writ Petitions, disputing the averments made in the affidavits filed in support of the Writ Petitions. A perusal of the averments in the counter show that the Petitioner herein has not complied with the statutory requirement, namely, filing of necessary documents within the time prescribed. Insofar as the documents relating to (1) April, 2018 to July, 2018 and (2) August, 2018 to March, 2019, it is pleaded that the Petitioner could have obtained the endorsement certificate much prior and taking the plea of Covid pandem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed aside, more so, when the statue provides that the Petitioner is entitled for refund under Section 24, and Rule 112 prescribe filing of application even in appeal. (iii) In view of the above and having regard to the finding given by the Appellate Authority that accepting document at a belated stage is the discretion of the authority, submits that the Order under challenge requires to be set-aside and consequently the matter be remanded back to the Appellate Authority for fresh consideration by taking into consideration the endorsement certificate of Ramky Pharmacity India Limited. 7. Per contra, Sri. Suresh Kumar Routhu, learned Senior Standing Counsel appearing for Respondent Nos. 1 to 3, opposed the same contending that when the Statue prescribed a thing to be done in a particular manner, the same has to be done in that manner alone. In other words, his argument appears to be that, since Section postulates filing of endorsement certificate along with refund application, seeking a direction from this Court for accepting the endorsement certificate pending appeal, may not be correct. He further submits that, the Petitioner ought to have secured the endorsement certificate w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icate within the time prescribed, proved futile, cannot be brushed aside. 11. Coming to acceptance of additional evidence pending appeal, it would be just and proper to extract Rule 112 of the C.G.S.T. Rules, which reads as under: 112. Production of Additional Evidence before the Appellate Authority or the Appellate Tribunal - (1) The appellant shall not be allowed to produce before the Appellate Authority or the Appellate Tribunal any evidence, whether oral or documentary, other than the evidence produced by him during the course of the proceedings before the adjudicating authority or, as the case may be, the Appellate Authority except in the following circumstances, namely:- (a) where the adjudicating authority or, as the case may be, the Appellate Authority has refused to admit evidence which ought to have been admitted; or (b) where the appellant was prevented by sufficient cause from producing the evidence which he was called upon to produce by the adjudicating authority or, as the case may be, the Appellate Authority; or (c) where the appellant was prevented by sufficient cause from producing before the adjudicating authority or, as the case may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing Officer. Those confirmation letters were in support of the ground of assessee's appeal, therefore, it was covered under sub-clause (c) also. 13. Further, Rule 112(4) of C.G.S.T. Rules postulate that, nothing contained in the said Rule shall affect the power of the Appellate Authority or the Appellate Tribunal to direct production of any document, or examination of any witness, to enable it to dispose of the appeal. In fact, Section 107(11) of C.G.S.T. Act contemplate that, before disposing of any appeal, the Appellate Authority may make any further inquiry as he thinks fit. The said provision is akin to Section 250 of the Income Tax Act, which is similar to Section 107 of C.G.S.T. Act, which deals with the procedure in appeal before the Appellate Authority. Ergo, having regard to the judgments, referred to above and the provisions of law, it is very much clear that the Appellate Authority has got power in a given set of circumstances, to accept the request of taking additional evidence on record. In fact, the Appellate Authority in paragraph No. 11 of the Order categorically states that, as a rule, additional evidence is not permitted to be produced, for the firs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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