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TMI Blog2022 (12) TMI 1454X X X X Extracts X X X X X X X X Extracts X X X X ..... or the period in which such claim for refund arises. The adjudicating authority has calculated the relevant date in accordance with law and the refund application filed by the appellant was beyond the prescribed time limit. Hon'ble Supreme Court in IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION [ 2022 (1) TMI 385 - SC ORDER] has extended the period of limitation excluding the period from 15.03.2020 to 28.02.2022 (lockdown period) - during pendency of this appeal before this office, CBIC vide Notification No. 13/2022-Central Tax dated 05.07.2022 has excluded the period from 01.03.2020 to 28.02.2022 for computation of period of limitation for filing refund application under section 54 or section 55 of the said Act. Thus, refund application in the present case has been filed on 08.09.2021 is within time extended by the Hon'ble Apex Court and CBIC. And the order of the adjudicating authority is liable to be set aside. Whether the party has paid excess payment, which has to be refunded or not? - HELD THAT:- The adjudicating authority held that there appears to be no excess payment made by the party. The adjudicating authority did not mention any valid justification ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;), is reproduced as under: Sl. No. Category of service Supplier of service Recipient of service 10. Services supplied by a person located in non- territory by way of transportation of goods by a vessel from a place outside India up to the customs station of clearance in India A person located in non-taxable territory Importer, as defined in clause (26) of section 2 of the Customs Act, 1962(52 of 1962), located in the taxable territory. In compliance of the above, the Appellant made the payment of IGST under RCM to the tune of Rs. 74,423/- on the imports made during the relevant period, out of which an amount of Rs. 68,538/ -was already availed as Input Tax Credit ( ITC ) by the Appellant. The balance amount of Rs. 5,885/- was not available as ITC to the Appellant. 2.3 The Appellant filed an application for refund (on September 8, 2021) vide acknowledgment no. ZY0610210125156 dated October 9, 2021 of the balance amount of IGST i.e. Rs. 5,885/- paid under RCM. The Adjudicating Authority issued Show Cause Notice No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which accrued when the tax was illegally collected from him. This is an absolute obligation which flows from Article 265 of the Constitution or India. No statute can provide otherwise. If a collection of tax is found to be illegal being in contravention of the provisions of the CGST Act, then it not only violates the Act but also the Constitution. A.2 As already submitted in foregoing paragraphs, Section 5(3) of the IGST Act casts responsibility on the 'recipient' to deposit GST under RCM, in respect of certain notified categories of services. The term 'recipient' has been defined under Section 2(93) of the CGST Act to mean the following: Person who is liable to pay the consideration for supply of goods or services, in cases where the supply includes payment of consideration. Person to whom the service is rendered, in cases where there is no consideration payable for supply of service In the instant case, the goods were imported by the Appellant on CIF basis, which are inclusive of insurance and freight. Notably, in case of CIF imports, the agreement or arrangement far supply of goods with the foreign shipping line is entered by the foreign supplie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itself. That said, the Reverse Charge Notification to the extent it imposes the liability to pay tax on a person other than the recipient, is un-constitutional, ultra-vires the IGST Act and beyond the rule-making power of the Central Government. B.2. Reference can be made to the judgment passed by Gujarat High Court in the case of Mohit Minerals Private Limited and Ors. v. UOI, 2020-VIL-36-GUJ, wherein the Court held the levy of IGST on ocean freight charges (in case of CIF imports) as unconstitutional and ultra-vires the IGST Act. C. Time limit prescribed under Section 54 is not applicable to instant refund claim C.1. As a natural corollary of the submissions made above, the Appellant would also like to highlight here that the IGST paid by the Appellant being a mere 'deposit', the statutory time limit of 2 years provided under Section 54 of the CGST Act for claiming refund of 'tax' paid shall not be applicable to the instant case. Reliance in this context is on the case of Comsol Energy Private Limited v. The State of Gujarat, 2021(6) TMI 827 Gujarat High Court, wherein the department rejected the refund claim of ocean freight on the grounds that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. In any event, no material in that regard was placed on record. The show cause notice is the foundation on which the department has to build up its case. If the allegations in the show cause notice are not specific and are on the contrary vague, lack details and/or unintelligible that is sufficient to hold that the noticee was not given proper opportunity to meet the allegations indicated in the show cause notice. In the instant case, what the appellant has tried to highlight is the alleged connection between the various concerns. That is not sufficient to proceed against the respondents unless it is shown that they were parties to the arrangements, if any. As no sufficient material much less any material has been placed on record to substantiate the stand of the appellant, the conclusions of the Commissioner as affirmed by the CEGAT cannot be faulted . G. Not only that post submission of a detailed response to the Impugned SCN, the impugned Order also was incorrect and vague in rejecting the claim of the Appellant on arbitrary grounds, in as much as the Impugned Order states that There appears to be no excess payment made by the party. Reply to SCN does not any of above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing made by the appellant. 5.2 I find that the Adjudicating Authority has rejected the refund claim on account of that : i . the refund application is filed after more than two years therefore barred by limitation in terms of Section 54 of CGST Act, 2017; ii. There appears to be no excess payment made by the party. Reply to SCN does not counter any of facts. 5.3 I find that the main issues to be decided in the instant case are i. whether the refund application dated 08.09.2021 is time barred or not ; ii. party has paid excess payment, which has to be refunded or not. 6. In order to appreciate the legal status, it is prudent to reproduce the said Sections and Rules along with the amendments. I find that relevant para of Section 54 of the CGST, Act, 2017 and Rule 89 of the CGST, Rules, 2017 are stipulated as under: 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 form and manner as may be prescribed: Provided that a registered person, claiming refund of any balan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed in terms of the provisions contained in Section 54 of CGST Act, 2017 which provides that any person claiming refund of any tax and interest, if any, paid on such tax any other amount paid by him, may make an application before the expiry of two years from the relevant date in such form and manner as may be prescribed. Further, Clause (e) to Explanation 2 of Section 54 defines relevant date for the purpose of filing refund application under inverted duty structure as the due date for furnishing of return under section 39 for the period in which such claim for refund arises. I hold that the adjudicating authority has calculated the relevant date in accordance with law and the refund application filed by the appellant was beyond the prescribed time limit. 7.2 Hon'ble Supreme Court, vide its order dated 10.01,2022 has extended the period of limitation excluding the period from 15.03.2020 to 28.02.2022. Abstract of the same is reproduced as under : . The order dated 23.03.2020 restored and in continuation of the subsequent orders dated 08.03.2021, 27.04.2021 and 23.09.2021, it is directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Notification No. 10/2017-Integrated Tax (Rate) dated 28.06.2017. Serial 10 of Notification 10/2017 categorized the recipient of services of supply of goods by a person in a non-taxable territory by a vessel to include an importer under Section 2(26) of the Customs Act 1962. 8. I note that adjudicating authority held that there appears to be no excess payment made by the party. The adjudicating authority did not mention any valid justification about the decision made that there appears to be no excess payment . The same reply has been submitted by the Assistant Commissioner, CGST Division Panchkula, vide its letter dated 17.10.2022. I note that neither any calculation any reconciliation has been provided with the O-I-O dated 26.10.2021. 9.1 Entry No. 10 of the Notification No. 10/2017-Integrated Tax (Rate) dated June 28, 2017 ('Reverse Charge Notification'), is reproduced as under: Sl. No. Category of service Supplier of service Recipient of service 10. Services supplied by a person located in non- taxable territory by way of transportation of goods by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er submission made by the appellant, they have already availed ITC amounting to Rs. 68,538/- out of Rs. 74 423/-. And the balance amount of Rs. 5,885/- was not available as ITC to the appellant. Hence, I find that the amount of Rs. 5,885/- is liable to be refunded to the appellant. I reject the view of the adjudicating authority, wherein without providing any justification, it has been stated that there appears to be no excess payment and refund has been rejected. 9.5. The present appeal has been filed on 04.02.2022 under Section 107 of the CGST Act, 2017 which is reproduced as under: 107. Appeals to Appellate Authority: (1) Any person aggrieved by any decision or order passed under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act by an adjudicating authority may appeal to such Appellate Authority as may be prescribed within three months from the date on which the said decision or order is communicated to such person. .. (4) The Appellate Authority may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months or six mont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicable in respect of any appeal which is required to be filed before Joint/ Additional Commissioner (Appeals), Commissioner (Appeals), Appellate Authority for Advance Ruling, Tribunal and various courts against any quasi-judicial order or where proceeding for revision or rectification of any order is required to be undertaken, and is not applicable to any other proceedings under GST Laws . 9.7 I further find that Hon ble Supreme Court of India vide order dated 10.01.2022 in M.A. No. 29 of 2022 with MA No. 665 of 2021 with Suo Moto writ Petition (C) No. 3 of 2020 has given the direction which are as under: 5. Taking into consideration the arguments advanced by learned counsel and the impact of the surge of the virus on public health and adversities faced by litigants in the prevailing conditions, we deem it appropriate to dispose of the M.A. No. 21 of 2022 with the following directions: I. The order dated 23.03.2020 is restored and in continuation of the subsequent orders dated 08.03.2021, 27.04.2021 and 23.09.2021, it is directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any genera ..... X X X X Extracts X X X X X X X X Extracts X X X X
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