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TMI Blog2023 (4) TMI 495X X X X Extracts X X X X X X X X Extracts X X X X ..... 25.11.2021 passed by the Additional Commissioner CGST Appeals-II (the Appellate Authority), whereby the petitioner's appeal against an order dated 29.04.2020 passed by the Adjudicating Authority was rejected. 2. In addition, the petitioner impugns the validity of Rule 90(3) of the Central Goods and Services Tax Rules, 2017 (hereafter 'the Rules'). The petitioner also assails Paragraph 12 of Circular No. 125/44/2019 dated 18.11.2019 as being ultra vires Section 54 of the Central Goods and Services Tax Act, 2017 (hereafter 'the CGST Act'). 3. The petitioner is essentially aggrieved by the denial of his request for refund of GST amounting to Rs.2,63,98,462/-. 4. The petitioner claims that excess tax to the aforesaid extent was paid for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to Rs.2,63,98,462/-. 9. The Adjudicating Officer issued a Deficiency Memo dated 31.01.2020 (in Form GST RFD 03) seeking certain other documents. 10. The said Deficiency Memo is set out below: FORM-GST-RFD-03 [See rule 90(3)] Deficiency Memo To 07AABCB5576G1ZN (GSTIN/ UIN/ Temporary ID) M/s. Bharat Sanchar Nigam Limited H.C MATHUR LANE, JANPATH NEW DELHI - 110001. Subject: Refund Application Reference No. (ARN) AA070120034449K Dated 17.01.2020. Sir/Madam, This has reference to your above mentioned application electronically filed vide above mentioned ARN under section 54 of the CGST Act, 2017, read with Rule 89 of CGST Rules. Upon scrutiny of your application, certain deficiencies have been noticed below: Sr.N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s filed on 22.01.2018), the petitioner was denied its claim for refund of excess tax. 16. The petitioner appealed the said order before the Appellate Authority, which was rejected by the impugned order 25.11.2021. The Appellate Authority upheld the order passed by the Adjudicating Authority. 17. The reasons stated by the Appellate Authority in the impugned order indicates that the Appellate Authority had proceeded on the basis that the petitioner had filed the first online refund claim along with documents on 10.02.2020. 18. The petitioner's application filed on 17.01.2020 was ignored. Although it has not been expressly stated, it appears that the Appellate Authority had proceeded on the basis that it was appellant's case that it had fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of tax; (l) a declaration to the effect that the incidence of tax, interest or any other amount claimed as refund has not been passed on to any other person, in a case where the amount of refund claimed does not exceed two lakh rupees: PROVIDED that a declaration is not required to be furnished in respect of the cases covered under clause (a) or clause (b) or clause (c) or clause (d) or clause (f) of sub-section (8) of section 54; (m) a Certificate in Annexure 2 of FORM GST RFD-01 issued by a chartered accountant or a cost accountant to the effect that the incidence of tax, interest or any 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: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. However, the said contention does not arise in the facts of the present case as the Appellate Authority has not rejected the petitioner's appeal on the ground that its application filed on 17.01.2020 was deficient; it has done so on an erroneous assumption that it was filed physically and not online. 27. It is pointed out that the Adjudicating Authority had proceeded on the basis that it had communicated the deficiencies in Form GST RFD 03 on 31.01.2020 electronically and the said deficiency was resolved after the expiry of two years as stipulated in Section 54 of the CGST Act. The Adjudicating Authority had referred to Rule 90(3) of the Rules and had proceeded on the basis that the said Rule provides for filing of a fresh refund appli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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