Tax Management India. Com
Law and Practice  :  Digital eBook
Research is most exciting & rewarding
  TMI - Tax Management India. Com
Follow us:
  Facebook   Twitter   Linkedin   Telegram

TMI Blog

Home

2025 (1) TMI 52

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... t the claim of the petitioner be duly processed and a decision taken thereon within a period of three weeks. Whether it would have been permissible at all for the Commissioner to question the validity of the order dated 09 June 2023 in purported exercise of powers conferred under Section 107 (2) of the Act? - HELD THAT:- The Commissioner, while seeking to review an order passed under the Act and in purported exercise of powers vested by Section 107 (2), cannot possibly sit over and above an order passed by the appellate authority - It clearly does not contemplate the Commissioner seeking to even attempt to review an order passed by the appellate authority. The power so wielded by the Commissioner with reference to Section 107 (2) is rendered further unsustainable when viewed in light of the observations which appear in our earlier order of 28 March 2024 - the impugned order cannot possibly sustain. Petition allowed. - HON'BLE MR. JUSTICE YASHWANT VARMA HON'BLE MR. JUSTICE DHARMESH SHARMA For the Petitioner Through: Mr. Siddharth Malhotra Ms. Ritika Goel, Advs. For the Respondent Through: Mr. Aditya Singla, SSC along with Mr. Umagn Misra, Adv. JUDGMENT YASHWANT VARMA, J. ( .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... l submissions and oral arguments made by the Appellant during the course of personal hearing. I find that Appellants refund claims, on account of ITC accumulated due to inverted duty structure, have been rejected mainly on the grounds that:- A the appellant was not in existence at the registered address during the course of physical verification. B The appellant was alleged to have claimed excessive consumption of brass in its production process in manufacturing of its product. Now I take up the issues point wise to decide the matter- a) The appellant has placed on record i) electricity bill issued by BSES in name of Harjinder Singh, Proprietor having the same address mentioned in GSTIN ii) Copy of VAT assessment order dated 02.01.2012 06.11.2019 bearing the same address iii) Copies of three refund orders bearing nos.662027, 662023 662028 issued by VAT department , Delhi iv) Income Tax Return for the assessment year 2019-20 alongwith the copy of balance sheet. These above mentioned evidence prove the existence of the appellant at the registered address. B--Adjudicating Authority has not provided the sources from which it was observed that the product which are claimed to be manufac .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... ed to approach this Court yet again by filing G.S. Industries v. Commissioner Central Goods And Services Tax Delhi West Anr. Ors W.P.(C) 14719/2022. While ruling on that petition, we had in terms of our order of 28 March 2023 observed as follows: - 11. The principal question that falls for consideration by this Court is whether the benefit of Order-in-appeal dated 03.01.2022 can be denied to the petitioner and the refund amount be withheld solely on the ground that the respondent has decided to file an appeal against the said order. 12. Concededly, the respondent has not filed any appeal against the order-in-appeal dated 03.01.2022, and there is no order of any Court or Tribunal staying the said order. Indisputably, the order-in-appeal dated 03.01.2022 cannot be ignored by the respondents solely because according to the revenue, the said order is erroneous and is required to be set aside. 13. Learned counsel for the parties also pointed out that the said issue is covered by the earlier decision of this Court in Mr. Brij Mohan Mangla Vs. Union of India Ors.: W.P.(C) 14234/2022 dated 23.02.2023. 14. In view of the above, the present petition is allowed. The respondents are directed t .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... payer shall upload the details of all the invoices on the basis of which input tax credit has been availed during the relevant period for which the refund is being claimed, in Annexure-B along with the application for refund claim. A(ii) Para 6.1 and 6.2 of Circular No. 135/05/2020-GST dated 31.03.2020 provide that taxpayer shall add a column relating to HSN/SAC Code in the statement of invoices relating to inward supply as provided in Annexure-B of the Circular No. 125/44/2019-GST dated 18.11.2019 so as to easily identify between the supplies of goods and services. A(iii) Further para 53 of Circular No. 125/44/2019-GST dated 18.11.2019 provides that the refund of tax paid on input services and capital goods as part of refund of input tax credit accumulated on account of inverted tax structure is not allowed. 12.1 In the instant case, it has been noticed that taxpayer has neither uploaded Annexure-B nor submitted it to the concerned division and the refund claim has been sanctioned without considering the mandatory document i.e. Annexure-B as mentioned in Circular No. 125/44/2019-GST dated 18.11.2019 Circular No. 135/05/2020-GST dated 31.03.2020. Whereas without Annexure-B, ITC of .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... dingly, I pass the following order. ORDER 8. The appeal filed by the Dy./Assistant Commissioner, CGST Rajouri Garden Division, CGST Delhi West, 4th Floor, EIL Annexe Building, Bhikaji Cama Place, New Delhi 110066 against Order-In-Original No. CGST/DW/Rajouri/R-123/Refund/ G.S.Industries/ 05/2022/86 dated 09.06.2023 is hereby allowed. The impugned order dated 09.06.2023 is set aside for the reasons as discussed supra. The instant appeal is disposed of in terms of Section 107 (12) of CGST Act, 2017. 15. We find ourselves unable to sustain the order dated 24 May 2024 for reasons which follow. Undisputedly, we had in terms of our order passed on 28 March 2023 in the earlier round of litigation in unequivocal terms held that since concededly the respondents had failed to assail the Order-in-Appeal dated 03 January 2022, the claim for refund could not have been denied. That is the position which remains unchanged even till date. 16. That leaves us only to consider whether it would have been permissible at all for the Commissioner to question the validity of the order dated 09 June 2023 in purported exercise of powers conferred under Section 107 (2) of the Act. Undisputedly the order of 0 .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

 

 

 

 

Quick Updates:Latest Updates