9911796707
TMI Blog2023 (6) TMI 685X X X X Extracts X X X X X X X X Extracts X X X X ..... .10.2019 and corresponding communication in GSTN Portal, Petitioner was informed that its refund application has been sanctioned which is awaiting issuance of payment advice under RFD-05 by the jurisdictional officer. Consequent thereto, Petitioner repeatedly followed-up with the Respondent- Department for issuance of payment advice and after a lapse of about 30 months, in the month of April, 2022, Petitioner was communicated for the first time that its refund application has been rejected through RFD 01-B and the refund order is bearing order no. 91 dated 18.10.2019. However, copy of the said refund rejection order is not available in the record of the Department. Admittedly, no opportunity of hearing has been granted to the Petitioner before passing of the purported order of rejection of refund. This Court, vide order dated 30.01.2023, held that in absence of any order either sanctioning or rejecting refund application being available on record, no decision can be said, under law, to be taken on the refund application of the Petitioner. Accordingly, we directed the respondent to take decision on the refund application of the Petitioner. However, despite the order, which has not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from expiry of 60 days from the date of receipt of application for refund, till the date of payment of the refundable amount. 2. The facts as it emerges for the averments made in the respective affidavits it appears that the Petitioner is a government company and the instant writ application pertains to its Bokaro Steel Plant, which is primarily engaged in the business of manufacture of iron and steel and is duly registered under the provisions of the Goods and Services Tax Act, 2017 bearing GSTIN No. 20AAACS7062FAZJ. 3. For the purpose of manufacture of iron and steel, Petitioner requires various raw materials including coal which is subjected to levy of compensation cess under The Goods and Services Tax (Compensation to States) Act, 2017. In terms of Section 11 of the aforesaid Act, compensation cess payable on Inputs is permitted to be adjusted only against tax liability of compensation cess, and, unutilized compensation cess is not adjustable against the liability towards CGST, SGST and IGST. However, in case of export, excess ITC available towards compensation cess at the hands of the assesse can be claimed as refund in terms of Section 16 read with Section 54 of the CGST Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well as the purported order passed pertaining to rejection of its claim for refund. The Petitioner was supplied certified copy of Form RFD 01-B, wherein the order rejecting refund was described as Order No. 91 dated 18.10.2019 , but Petitioner was not supplied the said order by Respondent-authorities. Since no order rejecting refund was supplied to the Petitioner, the Petitioner, thereafter, again filed representations before Respondent-authorities for processing its claim for refund and to issue consequential order of refund including interest, as, there was no order in the records rejecting refund application of the Petitioner. However, pursuant to said representations, the Petitioner was communicated a letter contained in Memo No. 208 dated 31st May, 2022 informing the Petitioner that refund application of the Petitioner has been rejected by the erstwhile Deputy Commissioner of State Tax, Bokaro Circle, Bokaro through RFD 01-B dated 22.10.2019 and ITC has been re-credited to the electronic credit ledger of the Petitioner and, hence, its request for processing of its refund application cannot be adhered to. It is in the said background that Petitioner filed the instant writ appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt, vide order dated 30th January, 2023, passed following order:- Writ petition has been preferred for a direction upon the respondents to produce the refund rejection order being RFD-06 no. 91 dated 18.10.2019 allegedly passed by respondent no.3 and to consequentially quash the same. Petitioner has sought consequential relief of refund of Rs. 2,90,86,294/- for the period 2017-18 along with statutory interest. The counter affidavit of the respondents dated 14th December 2022 at paragraph-7 categorically indicates that a refund application was made by the petitioner on 4th March, 2019 for the period 2017-18 (July 2017 to March 2018) claiming a refund of Rs. 2,90,86,294/- as refund of ITC on exports of goods and services without payment of tax . According to the petitioner, its claim was rejected. At paragraph-9 of the counter affidavit it has also been stated that certain documents submitted by the petitioner pursuant to letter dated 12th June 2019 bearing no. 1425 were scrutinized by the Department and by an e-mail dated 22nd October 2019 a communication to the effect mentioning inter alia order details against RFD 06 have been submitted by the Tax Official for ARN200318232092U dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sked for. Let the matter be listed on 1st March, 2023. 10. In compliance of the order passed by this Court, petitioner has debited the amount of Rs. 2,90,86,294/- from its electronic credit ledger on 13.02.2023 and approached the Respondent-authorities for processing its refund application. Thereafter, the matter was listed before this Court on 15.03.2023, 23.03.2023 and 29.03.2023 and on the said dates Respondent-State of Jharkhand sought time for seeking instructions on the issue of passing of an order on the application of refund of the Petitioner. However, subsequently, a supplementary counter affidavit was filed by Respondent-Department, wherein a volt face was taken and it was stated that Petitioner should approach the Department by filing a fresh refund application which will be processed by the Department in accordance with law. 11. In the backdrop of the aforesaid factual enunciation, the question for adjudication before this Court is Whether the petitioner is entitled to claim refund along with statutory interest on the basis of its original application for refund being Application Reference No. ARN AA200318232092U dated 04.03.2019 for an amount of Rs. 2,90,86,294/- for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quired to be rejected under Rule 92(3) of the CGST Rules, a notice in Form GST RFD-08 was required to be given to the said dealer asking it to file its show cause reply as to why claim for refund be not rejected. It was contended that no show cause notice was issued to the Petitioner in Form GST RFD-08 and it was submitted that there was no occasion for issuance of such show cause notice, as Petitioner was communicated that its refund has been sanctioned, and, it is only after a lapse of 30 months, for the first time, petitioner has been communicated that its refund has been rejected. Reliance was placed upon a decision of the Hon ble Bombay High Court rendered in the case of Adisan Laboratories Pvt. Ltd. vs. Union of India, reported in (2022) 24 Tax Law.com 75 (Bombay), wherein Hon ble Court, in similar circumstances, by considering Rule 92 of the CGST Rules, held that issuance of notice under Rule 92(3) is not a mere formality and is an aid to the provisions giving an opportunity to the applicant to demonstrate that refund is payable to it. 14. Further reliance has been placed upon the decision of Union of India vs. Tata Chemicals, reported in (2014) 6 SCC 335 . Relevant Para-38 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on on 04.03.2019 and vide email dated 22.10.2019 and corresponding communication in GSTN Portal, Petitioner was informed that its refund application has been sanctioned which is awaiting issuance of payment advice under RFD-05 by the jurisdictional officer. Consequent thereto, Petitioner repeatedly followed-up with the Respondent- Department for issuance of payment advice and after a lapse of about 30 months, in the month of April, 2022, Petitioner was communicated for the first time that its refund application has been rejected through RFD 01-B and the refund order is bearing order no. 91 dated 18.10.2019. However, copy of the said refund rejection order is not available in the record of the Department. Admittedly, no opportunity of hearing has been granted to the Petitioner before passing of the purported order of rejection of refund. 17. It is in the aforesaid background that this Court, vide order dated 30.01.2023, held that in absence of any order either sanctioning or rejecting refund application being available on record, no decision can be said, under law, to be taken on the refund application of the Petitioner. Accordingly, we directed the respondent to take decision on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g an excess ITC of Rs. 359.54 crores as closing balance towards compensation cess in its electronic credit ledger. Thus, re-credit of an amount of Rs. 2,90,86,294/- being the refundable amount for the period 2017-18 in the electronic credit ledger of the Petitioner towards compensation cess, was making no difference as the Petitioner has not utilized the said amount for payment of any output tax liability. 20. In view of the cumulative facts mentioned hereinabove, we are of the opinion that alleged order bearing Order no. 91 dated 18.10.2019, by which refund application of the Petitioner has been purportedly rejected by the Respondent, is non-est in the eye of law being a non-existing order and the claim of refund of the Petitioner is required to be processed in terms of its original application being Application Reference Number (ARN) AA200318232092U dated 04.03.2019. The Petitioner is further entitled to interest in terms of the provisions of Section 56 of the CGST Act after expiry of 60 days from the date of receipt of the application for refund i.e., 04.03.2019 @ 6% per annum till the date of payment of refundable amount to the Petitioner. Respondents are directed to process th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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