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TMI Blog2025 (3) TMI 835X X X X Extracts X X X X X X X X Extracts X X X X ..... filed during the months of September 2018 and October 2018. These refund claims were filed in the portal and were thus prima facie in time. This was in accordance with Circular No.79/53/2018-GST dated 31.12.2018 which was vague. It specified that the refund application in FORM GST RFD-01A, along with all supporting documents, shall be submitted electronically. Since the petitioner has effected Zero Rated Supplies within the meaning of Section 16(1) of IGST Act, 2017, the "relevant date" during the period in dispute would be 2 years from the end of the "tax period".Admittedly, in this case, the refunds are all unutilized Input Tax Credit on the Zero Rated Supply (Exports) under Section 16(3)(a) of IGST Act, 2017 - The amendment to Explanation 2(e) to Section 54 of CGST Act, 2017 with effect from 01.02.2019 vide N/N. 02/2019-CT dated 29.01.2019 pursuant to CGST Amendment Act, 2018 (31/2018) dated 30.08.2018 was intended clarify what was explicit in Clause (ii) to Proviso to Section 54(3) of CGST Act, 2017. A reading of the limitation under Explanation 2(a) to Section 54 of CGST Act, 2017 and Explanation 2(e) to Section 54 of CGST Act, 2017 till 31.01.2014 indicates that they prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.11.2019 issued by the third respondent and for a further direction to the first respondent to reconsider the refund claim on its merits. 4. The Petitioner is aggrieved by Paragraph 12 of the Impugned Circular No.125/44/2019 dated 18.11.2019 issued by the third respondent. Paragraph 12 of Circular No.125/44/2019 dated 18.11.2019 issued by the third respondent impugned in W.P.No.6541 of 2022 reads as under:- "12. It is also clarified that since a refund application filed after correction of deficiency is treated as a fresh refund application, such a rectified refund application, submitted after correction of deficiencies, shall also have to be submitted within 2 years of the relevant date, as defined in the explanation after sub-section (14) of section 54 of CGST Act." 5. In W.P.Nos.6524, 6527 and 6537of 2022, the petitioner has challenged the following Order-in-Appeal Nos.237-638/2021-JC (GSTA-II) all dated 05.08.2021 passed by the first respondent. The details of the Impugned Orders are as follows:- Table-1 Sl. No. W.P.No. Date Order-in-Appeal No. Period 1. 6524 of 2022 05.08.2021 237/2021-JC (GSTA-II) July 2017 2. 6527 of 2022 05.08.2021 238/2021-JC (GSTA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty. Provided also that no refund of Input Tax Credit shall be allowed, if the supplier of goods or services or both avails of drawback in respect of central tax or claims refund of the integrated tax paid on such supplies. Provided that where the amount claimed as refund is less than two lakh rupees, it shall not be necessary for the applicant to furnish any documentary and other evidences but he may file a declaration, based on the documentary or other evidences available with him, certifying that the incidence of such tax and interest had not been passed on to any other person. Explanation.- For the purposes of this section, - (1) "refund" includes refund of tax paid on zero-rated supplies of goods or services or both or on inputs or input services used in making such zero-rated supplies, or refund of tax on the supply of goods regarded as deemed exports, or refund of unutilised input tax credit as provided under subsection (3). (2) "relevant date" means- (a) in the case of goods exported out of India where a refund of tax paid is available in respect of goods themselves or, as the case may be, the inputs or input services used in such goods, i. if the goods are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax on inputs being higher than the rate of tax on output supplies (other than nil rated or fully exempt supplies), except supplies of goods or services or both as may be notified by the Government on the recommendations of the Council:" The appellant's contention that the relevant date for claiming the eligible unutilized ITC is the end of the financial year in which such claim for refund arises and two years from the relevant date should be calculated from the end of the financial year is not tenable as the refund claims in the present appeal is on account of refund of ITC accumulated on Export of goods (without payment of tax). 8.3 On the other hand, I find that Explanation 2(a) to Section 54 of the Act stipulates for relevant date, "(a) in the case of goods exported out of Inia where a refund of tax paid is available in respect of goods themselves or, as the case may be, the inputs or input services used in such goods, - (i) if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India: or (ii) if the goods are exported by land, the date on which such goods pass the frontier: or (iii) if the goods are expor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late Authority has affirmed the views of the second respondent vide the Impugned Orders. 12. The point for consideration in these Writ Petitions are whether the refund claims were filed in time or beyond time within the meaning of Section 54 of the Central Goods and Service Tax Act,2017? 13. If W.P.No.6524 of 2022, W.P.No.6527 of 2022 and W.P.No.6537 of 2022 are to be allowed on a plain reading of the provisions, it may be unnecessary to pass any detailed orders in W.P.No.6531 of 2022 and W.P.No.6541 of 2022. 14. These refund claims were filed by the petitioner for refund of unutilized Input Tax Credit on the supplies under Section 16(3)(a) of the Integrated Goods and Services Tax (IGST) Act, 2017 read with Section 54 of the Central Goods and Services Tax (CGST) Act, 2017 and Rules 89 and 90 of the Central Goods and Services Tax (CGST) Rules, 2017 on the dates mentioned in Column 3 to the Table-2. 15. The claims were thereafter filed manually on 23.03.2019 as detailed in Column 4 to Table-2. There were certain defects in the refund claims. Therefore, they were returned and were eventually re-presented on 18.10.2019 as detailed in Column 5 to Table-2. These returned claims were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ports made during 2018 since the refund claims filed on 21.09.2018, 09.10.2018, 10.10.2018 long before the above amendment. 24. It is submitted that since the refund claims were not on account of refund of unutilized Input Tax Credit arising out of the inverted tax structure, the refund claims were filed in time. Therefore, there was no justification in rejecting the refund claims of the petitioner as time barred. 25. That apart, the learned counsel for the petitioner has placed reliance on Proviso to Rule 90(3) of CGST Rules, 2017 inserted vide Notification No.15/2021-Central Tax (CT) dated 18.05.2021. It was therefore submitted that Proviso to Rule 90(3) inserted vide Notification No.15/2021-Central Tax (CT) dated 18.05.2021 with effect from 18.05.2021 was retrospective in nature. 26. It is therefore submitted that the aforesaid Proviso to Sub-Rule 3 to Rule 90 has to be given retrospective effect. It is therefore submitted that the petitioner is entitled to refund. Hence, the petitioner seeks for a Writ of Mandamus in W.P.No.6531 of 2022. 27. By the same token, the petitioner has challenged Circular No.125/44/2019-GST dated 18.11.2019 issued by the Central Board of Indirect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y on 28.03.2019 were beyond the period of two years limitation prescribed under Section 54(1) read with Explanation 2(a)(i) to Section 54(14) of CGST Act as they were incomplete. Hence, it is submitted that the Impugned Order of the first respondent affirming the Order of the second respondent does not merit any interference. 36. I have considered the arguments advanced by the learned counsel for the petitioner and the learned counsel for the respondents. 37. Admittedly, the exports were made by the petitioner during July 2017, August 2017 and September 2017. Refund claims were filed during the months of September 2018 and October 2018 as detailed in Table-2 of this order. 38. These refund claims were filed in the portal and were thus prima facie in time. This was in accordance with Circular No.79/53/2018-GST dated 31.12.2018 which was vague. It specified that the refund application in FORM GST RFD-01A, along with all supporting documents, shall be submitted electronically. 39. However, various post submission stages of processing of refund applications were to be filed manually. Circular No.125/44/2019-GST dated 18.11.2019 impugned in W.P.No.6541 of 2022 has explained the posi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r both under bond or Letter of Undertaking, subject to such conditions, safeguards and procedure as may be prescribed, without payment of integrated tax and claim refund of unutilised Input Tax Credit. (b) He may supply goods or services or both, subject to such conditions, safeguards and procedure as may be prescribed, on payment of integrated tax and claim refund of such tax paid on goods or services or both supplied, in accordance with the provisions of Section 54 of the Central Goods and Services Tax Act or the Rules made thereunder. (3) A registered person making zero rated supply shall be eligible to claim refund of unutilized Input Tax Credit on supply of goods or services or both, without payment of integrated tax, under bond or Letter of Undertaking, in accordance with the provisions of Section 54 of the Central Goods and Services Tax Act or the Rules made thereunder, subject to such conditions, safeguards and procedure as may be prescribed: Provided that the registered person making zero rated supply of goods shall, in case of nonrealisation of sale proceeds, be liable to deposit the refund so received under this subsection along with the applicable interest under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be useful to refer to Explanation 2(a)(i) and 2(e) to Section 54 of CGST Act, 2017 are relevant. 51. By this time, Explanation 2(e) to Section 54 of CGST Act, 2017 had been amended with effect from 01.02.2019. 52. If the date of refund claim is taken as 21.09.2018, 09.10.2018 and 10.10.2018, the refund claim was within the period of limitation. On the other hand, if the date of refund claim is taken as 18.10.2019, or on other dates in Table-2 of this order, the refund claims would be beyond the period of limitation as per Paragraph 12 of the Circular No.125/44/2019-GST dated 18.11.2019, impugned in W.P.No.6541 of 2022. 53. Admittedly, in this case, the refunds are all unutilized Input Tax Credit on the Zero Rated Supply (Exports) under Section 16(3)(a) of IGST Act, 2017. 54. The amendment to Explanation 2(e) to Section 54 of CGST Act, 2017 with effect from 01.02.2019 vide Notification No.02/2019-CT dated 29.01.2019 pursuant to CGST Amendment Act, 2018 (31/2018) dated 30.08.2018 was intended clarify what was explicit in Clause (ii) to Proviso to Section 54(3) of CGST Act, 2017. 55. By the above amendment, the Parliament has clarified that the period of limitation for refund of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The expression "Tax Period" has been defined in Section 2(106) of CGST Act, 2017. For the sake of clarity, Section 54(3) and Section 2(106) of CGST Act, 2017 are reproduced below:- Section 54(3) of CGST Act, 2017 Section 2(106) of CGST Act, 2017 (3) Subject to the provisions of subsection (10), a registered person may claim refund of any unutilised input tax credit at the end of any tax period: Provided that no refund of unutilised input tax credit shall be allowed in cases other than i. zero rated supplies made without payment of tax; ii. where the credit has accumulated on account of rate of tax on inputs being higher than the rate of tax on output supplies (other than nil rated or fully exempt supplies), except supplies of goods or services or both as may be notified by the Government on the recommendations of the Council: Provided also that no refund of input tax credit shall be allowed, if the supplier of goods or services or both avails of drawback in respect of central tax or claims refund of the integrated tax paid on such supplies. "tax period" means the period for which the return is required to be furnished. 59. Thus, for the exports made during the month of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laims were filed within a period of 1 year and few months as in Table-2 of this order. Therefore, the Impugned Order of the Appellate Commissioner affirming the Order of the Lower Appellate Authority rejecting the refund claim are unsustainable. 68. Rule 90(3) of the CGST Rules, 2017 deals with "acknowledgement of refund claim". It reads as under:- Rule 90.Acknowledgement: (1) ..... (2) ..... (3) Where any deficiencies are notified, the proper officer shall communicate the deficiencies to the applicant in FORM GST RFD-03 through the common portal electronically, requiring him to file a fresh refund application after rectification of such deficiencies: Provided that the time period, from the date of filing of the refund claim in FORM GST RFD-01 till the date of communication of the deficiencies in FORM GST RFD-03 by the proper officer, shall be excluded from the period of two years as specified under Sub-Section (1) of Section 54, in respect of any such fresh refund claim filed by the applicant after rectification of the deficiencies." 69. The above the Proviso to Rule 90(3) was inserted with effect from 18.05.2021 vide Notification No.15/2021-CT dated 18.05.2021. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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