9911796707
TMI Blog2023 (2) TMI 815X X X X Extracts X X X X X X X X Extracts X X X X ..... 'the Act'). 2. The brief matrix of the present case is that the petitioner filed CWP No.8108 of 2021 challenging the order dated 19.2.2021, issued by the Additional Commissioner(Appeals), GST, praying for a refund of Central Goods and Services Tax (for short 'CGST') and State Goods and Services Tax (for short 'SGST') amounting to Rs.108.41 crores approximately wrongly paid on 5.4.2019 (for the disputed period, i.e. April 2018 to December 2018) more than the tax due under Section 77 of the Act. At that time, the GST regime had kicked in and the petitioner had one Registration Number for Service Tax which continued for the initial period under the new GST regime and thereafter, the petitioner obtained separate Registration Numbers in all 28 States. However, during the initial stage, the complete break-up of all notified transactions was not available to the petitioner and in the absence thereof for the period from April 2018 to December 2018, the petitioner paid CGST and SGST of Rs.108 Crores approximately treating the transactions to be intra-State sales. The supply was reported under GSTR1 and 3-B as a Business to Customer (B2C) supply as the GST registration of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed for calculating the interest liability shall be reckoned from 28.10.2021, the date on which the petitioner filed an online refund application for seeking a refund of the interest of Rs.15,68,26,554/- along with the principal amount of Rs.108.41 crores under the judgment dated 8.10.2021 of this Court. Learned counsel for the petitioner further argued that the interest shall be reckoned after the expiry of 60 days from the date of filing of the original application, i.e. 5.4.2019, as per the rates notified under Section 56 of the Act and an explanation of Section 56 of Act provides that the once the order passed by proper Officer rejecting the refund claim has been set aside by any Court, then it will be deemed that the said order is passed by a proper officer and the interest liability shall be calculated from the date of the original calculation and the petitioner had to file a fresh application as the Online GST portal does not allow refund of the principal amount along with interest unless a fresh application is filed. Learned counsel, in support of his contentions, relies upon the judgment passed by the Hon'ble Apex Court in Ranbaxy Laboratories Ltd. Vs. Union of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e P-1). A perusal of the judgement dated 8.10.2021 passed in CWP No.8108 of 2021 filed by the petitioner shows that the same was allowed and the respondents were directed for a refund of Rs.108.41 crores along with applicable interest within a period of 1 month. The Court had observed that additional amount of tax which was paid by the petitioner was the additional amount of Rs.108.41 crores approximately and the same was paid on the requirement of the respondents only. This Court specifically observed that the said money had been lying with the respondents for 2½ years and consequently, a direction was issued to the respondents for a refund of Rs.108 crores approximately along with applicable interest which had been rejected by the respondents vide impugned order dated 22.12.2021. For the proper adjudication of the matter and to resolve the issue about payment of interest, Section 54 and Section 56 of the CGST Act are reproduced hereinbelow:- "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 for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person: Provided that where the amount claimed as refund is less than two lakh rupees, it shall not be necessary for the applicant to furnish any documentary and other evidences but he may file a declaration, based on the documentary or other evidences available with him, certifying that the incidence of such tax and interest had not been passed on to any other person. (5) If, on receipt of any such application, the proper officer is satisfied that the whole or part of the amount claimed as refund is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund referred to in section 57. (6) Notwithstanding anything contained in sub-section (5), the proper officer may, in the case of any claim for 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "specified date" shall mean the last date for filing an appeal under this Act. (11) Where an order giving rise to a refund is the subject matter of an appeal or further proceedings or where any other proceedings under this Act is pending and the Commissioner is of the opinion that grant of such refund is likely to adversely affect the revenue in the said appeal or other proceedings on account of malfeasance or fraud committed, he may, after giving the taxable person an opportunity of being heard, withhold the refund till such time as he may determine. (12) Where a refund is withheld under sub-section (11), the taxable person shall, 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 subsection (2) of section 27, shall not be refunded unless such person has, in respect of the entire period for which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e invoice; (d) in case where the tax becomes refundable as a consequence of judgment, decree, order or direction of the Appellate Authority, Appellate Tribunal or any court, the date of communication of such judgment, decree, order or direction; [(e) in the case of refund of unutilised input tax credit under clause (ii) of the first proviso ro subsection (3), the due date for furnishing of return under section 39 for the period in which such claim for refund arises;] (f) in the case where tax is paid provisionally under this Act or the rules made thereunder, the date of adjustment of tax after the final assessment thereof; (g) in the case of a person, other than the supplier, the date of receipt of goods or services or both by such person; and (h) in any other case, the date of payment of tax. "Section 56 Interest on delayed refunds 56. If any tax ordered to be refunded under sub-section (5) of section 54 to any applicant is not refunded within sixty days from the date of receipt of application under subsection (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 recommend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng has been brought to the notice of this Court, neither by the petitioner nor by the respondents. 10. Now the actual question remains whether, in compliance with the judgement dated 8.10.2021, the order passed by respondent No.2 vide Annexure P-1 dated 22.12.2021, is contrary to and violative of directions issued by this Court about payment of interest. Given the judgement passed by this Court on 8.10.2021, the respondents' reliance upon explanation is not well founded and the said explanation does not deal with the period for which the interest is to be paid. The arguments raised by the petitioner are supported by the judgment of the Hon'ble Supreme Court in Ranbaxy's case (supra). In that case, Section 11B and 11BB of the Central Excise Act, 1944 fell for consideration. Section 11B and Section 11BB insofar as they are relevant read as under: "Section 11B. Claim for refund of [duty and interest, if any, paid on such duty]. - (1) Any person claiming refund of any [duty of excise and interest, if any, paid on such duty] to the Assistant [Principal Commissioner of Central Excise or Commissioner of Central Excise] [or Deputy [Principal Commissioner of Central Excise or Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id on excisable goods used as inputs in accordance with the rules made, or any notification issued, under this Act; (d) the [duty of excise or interest, if any paid on such duty] borne by the manufacturer, if he had not passed on the incidence of such [duty and interest, if any, paid on such duty] to any other person; (e) the [duty of excise and interest, if any paid on such duty] borne by the buyer, if he had not passed on the incidence of such [duty and interest, if any, paid on such duty] to any other person; (f) the [duty of excise and interest, if any paid on such duty] borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify : Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government the incidence of [duty and interest, if any paid on such duty] has not been passed on by the persons concerned to any other person. (3) Notwithstanding anything to the contrary in any judgement, decree, order or direction of the Appellate Tribunal or any Court or in any other provision of this Act or the rules made thereunder or any ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired when exported outside India, if returned to a factory after having been removed from such factory for export out of India, the date of entry into the factory; (d) in a case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by notification in the Official Gazette in full discharge of his liability for the duty leviable on his production of certain goods, if after the manufacturer has made the payment on the basis of such rate for any period but before the expiry of that period such rate is reduced, the date of such reduction; [(e) in the case of a person, other than the manufacturer, the date of purchase of the goods by such person;] [(ea) in the case of goods which are exempt from payment of duty by a special order issued under subsection (2) of section 5A, the date of issue of such order;] [(eb) in case where duty of excise is paid provisionally under this Act or the rules made there under, the date of adjustment of duty after the final assessment thereof;] [(ec) in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nuous period of two and a half years, in fact even before the date of filing of the application for a refund under Section 56 of the Act and the time taken for a refund of the money in terms of the judgment dated 8/10/2021 is unreasonable. The petitioner was entitled to a refund as well as interest amount vide judgment dated 8.10.2021, wherein a specific direction was issued for a refund of Rs.108 crores approximately which was deposited by the petitioner towards CGST+SGST along with applicable interest within one month. Unfortunately, this has not been done and the respondents have no justification for withholding the interest amount, which is a negligent act on the part of the respondents. The Government cannot deprive the petitioner from entitlement of the interest. Therefore, this inaction is wholly unjustified and has deprived the petitioner where the petitioner could have earned interest during this period but because of the withholding, this could not be done. 12. The Chart (Annexure P-3) indicating the delay in days is as follows:- S.No. Particulars Amount in Rs. 1 Date of filing of refund application via Form GST RFD-01A(ARN No.AA060419007521l) 5-Apr-19 2 Amount ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
