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TMI Blog2024 (6) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... d of with liberty to the petitioner to furnish manually the refund applications for refund of the left out amount. However, it is open for the respondent authorities to scrutiny the claim of the petitioner for refund of the amount in accordance with law and to take appropriate decision on the applications which may be made by the petitioner. - Hon'ble Dr. Justice Pushpendra Singh Bhati And Hon'ble Mr. Justice Yogendra Kumar Purohit For the Petitioner(s) : Mr. Sheetal Kumbhat For the Respondent(s) : Mr. Ankur Mathur, Ms. Shreshtha Mathur ORDER This present petition filed by the petitioner with the following prayer: a)Your Lordships may be pleased to issue a writ of certiorari or a writ in the nature of mandamus or any other appropriate writ, order or direction, to the respondents to arrange to permit and/or entail the petitioner to file the refund claim application for the period Dec. 2018 under Any Other category on GST portal; and/or in alternate Petitioner may kindly permitted to file physical Refund Application for the month of December 2018 before the concerned Authority. b) Both the Orders i.e. O-I-O dated 24,05,2020 (Annexure-4). As well as O-I-A dated 21.07.2020 (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s already granted refund for an amount of Rs. 1,00,47,38,439/-, and therefore, the dispute is with regard to refund of an amount of Rs. 10,20,28,733/-. When the petitioner realized the arithmetical error committed while submitting the applications for refund for particular months, supplementary applications have been made for getting the refund of aforesaid amount of Rs. 10,20,28,733/- within statutory period laid down under Section 54(1) of the CGST Act. It is the case of the petitioner that while showing the category of refund application, the petitioner has shown any other as the category because refund applications for these 11 months had already been made under Clause 7(c) i.e. accumulated ITC category for export of goods without payment of tax and the same had been sanctioned and paid by CGST officers. It is also relevant to note that as the petitioner already filed refund application under Clause 7(c) i.e. accumulated ITC category at first point of time, for the same month and same period, another/supplementary application for the refund of the differential amount of refund (not claimed by the petitioner on account of arithmetical error on the part of the petitioner) cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation cannot be ahead of policy making. Fiscal policy ought not be dictated through the judgments of the PART F High Courts or this Court. For it is not the function of the Court in the fiscal arena to compel Parliament to go further and to do more by, for instance, expanding the coverage of the legislation (to liquor, stamp duty and petroleum) or to bring in uniformity of rates. This would constitute an impermissible judicial encroachment on legislative power. Likewise, when the first proviso to Section 54(3) has provided for a restriction on the entitlement to refund it would be impermissible for the Court to redraw the boundaries or to expand the provision for refund beyond what the legislature has provided. If the legislature has intended that the equivalence between goods and services should be progressively realized and that for the purpose of determining whether refund should be provided, a restriction of the kind which has been imposed in clause (ii) of the proviso should be enacted, it lies within the realm of policy. xxx xxx xxx 99. We must be cognizant of the fact that no constitutional right is being asserted to claim a refund, as there cannot be. Refund is a matter of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner. In the case of Bombardier Transportation India Pvt. Ltd. (supra), the Division Bench of this Court observed in para 23 and 25 as under: 23. The writapplicant submits that as per its understanding, the EDI system, which is an electronic system developed and managed by the respondent no.3 with an objective to digitalize transmission of shipping bills between Respondents, suffers from lacunae that it does not permit amendment, which is specifically permitted in terms of Section 149 of the Customs Act, 1961, to be carried electronically through EDI system. It is a settled law that the benefit which otherwise a person is entitled to once the substantive conditions are satisfied cannot be denied due to a technical error or lacunae in the electronic system. xxx xxx xxx 25. In view of the above, the present writ- application succeeds and is hereby allowed. The respondents nos.1 and 2 are directed to grant the benefits of the MEIS to the writ- applicant within a period of four weeks from the date of the receipt of this order. 13.1. In the case of M/s Bodal Chemicals Ltd. (supra), the Division Bench of this Court observed in para 9 and 11 as under: 9. We are of the view that the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheme code, it was only an irregularity and not illegality. In Solanki Parvatikumari Rameshbhai Vs. State of Gujarat being Special Civil Application No. 22981 of 2017, Single Judge of this Court explained the differentiation between illegality and irregularity, 5.2 Law conceives a clear differentiation between illegality and irregularity. This nice distinction brings home the case of the petitioner. An illegality is something which amounts to substantial failure in compliance of requirement. It denotes such breach of rule or requirement which alters the position of a party in terms of his right or obligation. Illegality denotes a complete defect in the jurisdiction or proceedings. Illegality is properly predictable in its radical defects. It is a situation contrary to the principle of law. As against this, an irregularity as defined lexicographically, is want of adherence to some prescribed rule or mode of proceedings. It consist in omitting the rule something that is necessary for due and orderly conducting of a suit or doing it in an unreasonable time or improper manner. In Law Lexicon by R. Ramanatha Aiyar, 1997 Edition, irregularity is defined as a neglect of order or method; n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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