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TMI Blog2024 (3) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... nchi. (ii) For quashing and setting aside the Order-in-Original dated 31.07.2020 (Annexure-6) passed by the Respondent No. 3, whereby the said Adjudicating Authority without considering the show-cause reply dated 31.07.2020 (Annexure-5) filed by the petitioner, issued a rejection order in Form GST RFD-06 dated 31st July, 2020 rejecting the petitioner's claim of Rs. 1,93,21,127/- pertaining to cess paid on inputs used in making exports supplies, on the ground that PH scheduled on 30.07.2020 in this case was not attended and no documents uploaded/submitted to clarify/resolve the discrepancies pointed in the SCN uploaded dated 15.07.2020 in Form RFD-08 (Annexure-3). (iii) For a direction upon the concerned respondents to pass a fresh order-in-original allowing the petitioner's claim of refund of Rs. 1,93,21,127/; pertaining to cess paid on inputs used in making export supplies, after affording due opportunity of hearing to the petitioner and also after taking into account the show-cause reply dated 31.07.2020 (Annexure-5) filed by the petitioner before respondent no. 3." 3. The brief facts of the case as it appears from the writ application is that the petitioner company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the respondent no. 3, giving reply to the reason mentioned in the aforesaid notice (Annexure-5). He could not make appearance before respondent no. 03 on 30.07.2020 due to some COVID-19 cases in the petitioner-Company. 5. The specific case of the petitioner company is that the Respondent No. 3, in complete violation of principles of natural justice, even did not accept the show-cause reply dated 31.07.2020 filed by the petitioner and issued a rejection order in Form GST RFD-06 dated 31st July, 2020 rejecting the petitioner's claim of Rs. 1,93,21,127/- pertaining to cess paid on inputs (Annexure-6). Being aggrieved by the aforesaid rejection order, the petitioner filed an appeal under section 107 of CGST Act, before the Appellate Authority in Form GST APL-01; however, the Appellate Authority rejected the aforesaid appeal filed by the petitioner vide impugned Order-in-Appeal No. 18/CGST/RAN/2021 dated 01.03.2021 (Annexure-7). Though, as per the provisions of the CGST Act, the remedy of challenging the Order-in-Appeal lie before the Tribunal by way of filing the appeal under section 112 of the CGST Act; however, there is no constitution of appellate tribunal as on date of fili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.2020 (Annexure-6) passed by the respondent no. 3 has been passed in complete violation of principals of natural justice, without giving any opportunity of hearing to the petitioner and even without considering the show-cause reply dated 31.07.2020 (Annexure-5) filed by petitioner, which would be evident from the following facts: (i) SCN uploaded dated 15.07.2020 in form RFD-08 (Annexure-3). (ii) SCN dated 15.07.2020 (Annexure-3) was served on the petitioner on 16th July, 2020 at 3:20 p.m. via email (Annexure-4) to the petitioner to file show -cause reply within 15 days from the date of service of SCN. (iii) SCN reply dated 31.07.2020 (Annexure-5) was filed within 15 days from the date of service of SCN. (iv) Order-in-Original dated 31.07.2020 (Annexure-6) was passed by the respondent no. 3 without allowing opportunity of hearing to the petitioner and without considering the show-cause reply (Annexure-5) filed by the petitioner before him. (v) Learned Ac-CGST did not follow the virtual hearing instructions issued by the Hon'ble Supreme Court and CBIC itself. On merits of the case, learned Sr. Counsel submits that the refund formula under Rule 89(4) considers the tot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess paid by them on its input coal. Major output of the petitioner were products on which compensation cess was not payable and ITC remained unutilized in credit ledger. It further transpires that on 13.03.2020 GST-RFD-01 was filed by the petitioner seeking refund of Rs. 2,02,53,182/- for the period 2017-18 on the ground of refund claim on account of SEZ and direct export. On 26.06.2020 a revised GST-RFD-01 was filed seeking refund of Rs. 1,93,21,127/- for the period 2017-18 on the ground of refund claim on zero rated supply of goods (export sales). On 15.07.2020, GST-RFD-08 i.e., SCN for rejection of refund was issued to the petitioner. On 30.07.2020, date was fixed for personal hearing and also for filing show-cause reply. The petitioner filed its reply to SCN on 31.07.2020 itself; however, GST-RFD-01 was issued rejecting the claim of refund of petitioner on the ground that petitioner did not respond to SCN. On 01.03.2021, even the appeal of the petitioner was rejected. 9. From the arguments of the petitioner, it is clear that the main ground of challenge is that the principles of natural justice have not been followed in this case. To appreciate this issue, it would be profita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the proviso to Rule 92(3) has been pre-maturely fixed on 30.07.2020 itself. 10. At this stage it is pertinent to mention here that while a Personal Hearing (P.H.) was fixed on 30.07.2020, but admittedly it was premature in nature; thus, another personal hearing should have been granted to the petitioner after 31.07.2020 i.e., after receipt of reply to SCN, for making submissions and production of relevant/necessary papers and documents, to ensure that the Adjudicating Authority can examine such submissions and verify those documents before passing any order. However, interestingly, the final order itself was passed on 31.07.2020. In the similar facts and circumstance, the Bombay High Court in the case of BA Continum India Pvt. Ltd. Vs. Union of India, reported in MANU/MH/0659/2021, at paragraphs-34.1 and 35 has held, as under; "34.1. From the above, it is evident that in case where the proper officer is satisfied for reasons to be recorded in writing that the whole or any part of the amount claimed as refund is not admissible or is not payable, he shall issue notice to the applicant requiring filling of reply within 15 days of receipt of notice and after considering the reply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the date of receipt of SCN; which is admittedly; premature. Further the Adjudicating Authority was in so hurry that it passed the order on the very next date. At this juncture, it is necessary to refer the order passed by the appellate authority (OIA) while dealing with the ground of personal hearing. From the OIA, it transpires that the appellate authority on the issue of personal hearing has opined that personal hearing was granted and was conducted as per Ministry's instruction and P.H. was conducted on 15.01.2021. Perhaps, the learned appellate authority has misdirected itself in giving finding that personal hearing was given to the Assessee. However, the fact remains that P.H. was given on 15.01.2021 (during appellate proceeding), but not during original proceeding. Thus, the main ground of principle of natural justice has not at all been dealt with by the appellate authority and it went on giving the entire order on merits. 12. Further, from perusal of the impugned rejection order of refund dated 31.07.2020 (Annexure-6), it transpires that the same is also non-speaking order i.e., without recording any reasons, though the same is mandatory under Rule 92(3) of the Rules, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no DIN quoted on those Notice/Order, and as such those Notice/Order are invalid and deemed to have never been issued as per the Circular No. 122/41/2019-GST dated 05.11.2019 and Circular No. 128/47/2019-GST dated 23.12.2019, therefore the entire subsequent proceedings are null and void. In this regard, the Ministry of Finance, Government of India has issued a Circular No. 122/41/2019-GST dated 05.11.2019, regarding generation and quoting of DIN on any communication issued by Department to taxpayers and other concerned persons. In Para-4 of the same, the following has been specifically mentioned: "4. The Board also directs that any specified communication which does not bear the electronically generated DIN and is not covered by the exception mentioned in para 3 above, shall be treated as invalid and shall be deemed to have never been issued." Thereafter, another Circular No. 128/47/2019-GST dated 23.12.2019 was issued by the Central Government, wherein at Para-2 and Para-5 of the same, following, inter alia, has been mentioned: "2. ...............In continuation of the same, the Board has now directed that electronic generation and quoting of Document Identification Number (D ..... X X X X Extracts X X X X X X X X Extracts X X X X
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