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TMI Blog2024 (8) TMI 703X X X X Extracts X X X X X X X X Extracts X X X X ..... ction. The relevant provision contemplates that the refund claim must be proceeded within a period of seven (7) days from the date of filing of he application for refund. If it is not complied with, it will attract interest and in which case it will also amount to a misconduct for violation of the provisions of the GST Act. Therefore, the authority has to balance the interest of the exchequer and at the same time must process the refund claim within the time stipulated by the Act. As a Quasi-Judicial authority, if the petitioner has fulfilled all the requirements that are provided under the relevant Act and the circular, that by itself is sufficient compliance before passing the order of refund of the tax. If for any reasons, it ultimately turns out to be a fake export by a fraudster, the order passed by the petitioner by itself cannot result in the suspension of the petitioner. In other words, when the petitioner was exercising his Quasi-Judicial function, unless there was a strong prima facie material against the petitioner involving moral turpitude, grave misconduct, etc., suspension must be the last resort. This Court finds that there were no strong prima facie materials agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar dated 23.03.2020. After nearly six months, it came to light that the goods never crossed beyond the boundaries of India and some fraud had been committed by the trader. It is under these circumstances, the impugned suspension order dated 01.11.2023 came to be issued by the 2nd respondent. The same has been put to challenge in the present writ petition. 6. The respondents have filed counter affidavit. The respondents have taken a stand that the petitioner failed to verify the e-way bills which will specifically show the movement of the vehicle when it is crossing various tolls. It is further stated in the counter that the trader namely Khan Traders was also attempting to claim refund of the accumulated Input Tax Credit by playing fraud and the Directorate of Revenue Intelligence had forewarned to withhold any such application after the claim is made. Based on the record of the Directorate of Revenue Intelligence dated 11.09.2023, an inquiry was conducted and the results of the inquiry are as follows: 1)The refund for the month of March 2023 for Rs. 69,01,128/- was filed on 19.04.2023 at 16:53 hrs and RFD 04 for Rs. 62,11,015/- was sanctioned on 24.04.2023 at 04:52 pm. However, R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry proceedings, considering the public interest involved and the money that has been lost by the exchequer and the respondents have sought for the continuation of the suspension of the petitioner and for the dismissal of this writ petition. 9. Heard the learned Senior Counsel for the petitioner and the learned Government Advocate (Tax) for the respondents. 10. This Court has carefully considered the submissions made on either side and the materials available on record. 11. Section 54 of the CGST Act, 2017 deals with refund of tax. A circular dated 23.03.2020 has also been issued by the Commissioner of Commercial Taxes specifically providing the modalities to be followed for all refund applications filed in form GST RFD-01. It will be relevant to take note of clause 18 of the circular hereunder: Scrutiny of Application 18. In case of refund claim on account of export of goods without payment of tax, the Shipping bill details shall be checked by the proper officer through ICEGATE SITE (www.icegate.gov.in) wherein the officer would be able to check details of EGM and shipping bill by keying in port name, Shipping bill number and date. It is advised that while processing refund claims, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tered in Annexure-B whose details are not found in GSTR-2A of the relevant period Statement 3A under rule 89(4) BRC/FIRC in case of export of services and shipping bill (only in case of exports made through non-EDI ports) in case of goods. 14. The respondents have filed counter to the effect that the petitioner before passing orders granting refund, failed to verify the Eway bills and as a result, the petitioner has refunded the Input Tax to a fraudulent exporter. 15. The scope of interference in a suspension order is very narrow and the law on this issue is now too well settled. It will be relevant to take note of the judgment of the Hon'ble Supreme Court in Union of India and another Vs. Ashok Kumar Aggarwal reported in (2013) 16 SCC 147 and the relevant paragraphs are extracted hereunder: 21. The power of suspension should not be exercised in an arbitrary manner and without any reasonable ground or as vindictive misuse of power. Suspension should be made only in a case where there is a strong prima facie case against the delinquent employee and the allegations involving moral turpitude, grave misconduct or indiscipline or refusal to carry out the orders of superior authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat there is an abuse or misuse of power, and its jurisdiction is invoked, it is incumbent on the court to intervene. It is nevertheless, trite that the scope of judicial review is limited to the deficiency in the decision-making process and not the decision. 24. Long period of suspension does not make the order of suspension invalid. However, in State of H.P. v. B.C. Thakur, (1994) SCC (L S) 835, this Court held that where for any reason it is not possible to proceed with the domestic enquiry the delinquent may not be kept under suspension. 25. There cannot be any doubt that the Rules 1965 are a self contained code and the order of suspension can be examined in the light of the statutory provisions to determine as to whether the suspension order was justified. Undoubtedly, the delinquent cannot be considered to be any better off after the charge sheet has been filed against him in the court on conclusion of the investigation than his position during the investigation of the case itself. (Vide: Union of India Ors. v. Udai Narain) 26. The scope of interference by the Court with the order of suspension has been examined by the Court in a large number of cases, particularly in State o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are passed in mala fide and without there being even a prima facie evidence on record connecting the employee with the misconduct in question. 16. It is quite clear from the above judgment that the order of suspension is generally interfered where the authority does not have the jurisdiction to issue such a suspension order or where it is attended with malafides or in a case where there are no strong prima facie materials available against the delinquent. The Hon'ble Supreme Court has also cautioned that in a case where it involves public interest and the continuation of the employee in the office will be detrimental to the further proceedings, that is also a ground where a suspension will be justified. 17. The petitioner in the instant case has challenged the order of suspension mainly on the ground that there are no strong prima facie materials against the petitioner and that there was a clear non-application of mind on the part of the respondents in justifying the suspension on the ground that the petitioner did not check / verify the E-way bills, which was not a requirement under the circular dated 23.03.2020. 18. It must be borne in mind that the threshold while dealing wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 963,800.00 79 9144904 141 253 305 11 KT11 971,700.00 80 9144903 146 256 306 12 KT12 979,600.00 81 9144906 151 259 307 13 KT13 987,500.00 82 9144905 156 262 308 14 KT14 995,400.00 83 9144909 161 265 309 15 KT15 948,000.00 84 9144907 166 268 310 16 KT16 955,900.00 85 9144908 171 271 311 17 KT17 963,800.00 86 9144910 176 274 312 18 KT18 971,700.00 87 9144911 181 277 313 19 KT19 979,600.00 88 9144913 186 280 314 20 KT20 987,500.00 89 9144912 191 283 315 21 KT21 995,400.00 90 9144915 196 286 316 22 KT22 948,000.00 91 9144914 201 289 317 23 KT23 955,900.00 92 9144916 206 292 318 Total 22,309,600.00 20. As a Quasi-Judicial authority, if the petitioner has fulfilled all the requirements that are provided under the relevant Act and the circular, that by itself is sufficient compliance before passing the order of refund of the tax. If for any reasons, it ultimately turns out to be a fake export by a fraudster, the order passed by the petitioner by itself cannot result in the suspension of the petitioner. In other words, when the petitioner was exercising his Quasi-Judicial function, unless there was a strong prima facie material against the petitioner involving moral turpitude, grave misco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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