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TMI Blog2023 (3) TMI 529X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 31.03.2022 (Order-In-Appeal No.347-348/2021-22 - hereafter 'the impugned order'), whereby two separate appeals preferred by the petitioner against the Order-In-Original Nos. ZU0707210034420 dated 03.07.2021 and ZT0707210034442 dated 02.07.2021, respectively were dismissed. 2. Although the petitioner has a statutory right to appeal the impugned order, it is not possible for the petitioner to avail the said remedy as the Tribunal has not been constituted. 3. The petitioner had filed its refund application dated 11.09.2020 (in Form - GST-RFD - 01) seeking refund of the unutilized Input Tax Credit (hereafter 'ITC') amounting to Rs.72,03,961/-, which comprised of Integrated Goods and Service Tax (hereafter 'IGST') amounting to Rs.19,53,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the same, the petitioner was issued another summons dated 28.12.2020 for furnishing the documents, which, according to the petitioner, had already been submitted. 8. The petitioner wrote several letters to respondent no.2 requesting for an early disposal of his refund applications. However, his requests were not acceded to. 9. In the meantime, the petitioner became aware of the allegations that its supplier, M/s Shruti Exports, had issued fake invoices and its ITC was blocked. The said supplier had moved the High Court of Calcutta by filing a writ petition seeking unblocking of its Electronic Credit Ledger (hereafter 'ECL'). 10. Show cause notice dated 04.06.2021 was issued by respondent no.2 to the petitioner proposing to reject the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Respondent no.2 rejected the refund applications by an order dated 02.07.2021, essentially, on the same grounds as stated in the show cause notice. Respondent no.2 reiterated that an investigation had been initiated against the supplier (M/s Shruti Exports) from where the petitioner had allegedly procured the goods. The said order indicated that respondent no.2 had received information that M/s Shruti Exports (GST No. 19AFRPG5814N1ZS) had issued the following two invoices to the petitioner in the month of August, 2020: (i) Invoice No. SE/32/20.21 dated 29.08.2020; and (ii) Invoice No. SE/33/20.21 dated 29.08.2020 14. Although it was confirmed that the said invoices were reflected on the 'AIO' System, the refund applications were rej ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted overseas. Thus, the petitioner has established not only the fact that the goods have been exported but that it had paid for the same including the IGST and Cess. 19. The respondents filed a counter affidavit enclosing therewith a letter dated 16.04.2021 issued by the CGST Authorities, Kolkata in response to the request of respondent no.2 verifying the existence and genuineness of suppliers. The said letter indicates that M/s Shruti Exports was found to be an existing dealer and its sole proprietor was also a Director of M/s BVN Alloys Pvt. Ltd. Both the dealers were found existing at Room No.464, 4th Floor, 138 Biplabi Rashbehari Basu Road, Kolkata-700001. It was found that M/s Shruti Exports had availed of CGST and SGST totaling Rs.1, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C were raised by a registered dealer; and, there is no allegation that the petitioner has not paid the invoices, which include taxes. Thus, the applications for refund cannot be denied. 23. There is merit in the petitioner's contention that it is not required to examine the affairs of its supplying dealers. The allegations of any fake credit availed by M/s Shruti Exports cannot be a ground for rejecting the petitioner's refund applications unless it is established that the petitioner has not received the goods or paid for them. In the present case, there is little material to support any such allegations. 24. In On Quest Merchandising India Pvt. Ltd. v. Government of NCT of Delhi & Ors.: 2017 SCC OnLine Del 11286, a Coordinate Bench of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posit the tax collected from the purchasing dealer and if the selling dealer fails to do so, undergo the risk of being denied the ITC. Indeed Section 9(2)(g) of the DVAT Act places an onerous burden on a bonafide purchasing dealer." 25. In view of the above, the petitioner would be entitled to the refund of the ITC on goods that have been exported by it. The present petitions are, accordingly, allowed and the respondents are directed to forthwith process the petitioner's applications for refund of the ITC including Cess. 26. It is clarified that in the event the respondents are able to find material to establish the allegations regarding non-supply of any goods by M/s Shruti Exports to the petitioner, it would be open for the respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X
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