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TMI Blog2025 (4) TMI 1145X X X X Extracts X X X X X X X X Extracts X X X X ..... tution of India, the petitioner has prayed for the following reliefs: "A. Be pleased to issue a writ in the nature of mandamus directing Respondent No.3 or Respondent No.1 to refund the amount deposited by the petitioner vide DRC-03 dated 18.8.2022 for the reason that the said amount have been retained by the department in violation of Article 265 of the Constitution of India for the reason that neither a show cause notice has been issued nor acknowledgement in FORM DRC-04 has been issued by the department and also for the reason that the said deposit was made by mistake for the F.Y. 2017-18 and any proceedings under section 73 or 74 has become time barred (Annexure P-3); B. Be pleased to issue a writ in the nature of certiorari quashing the deficiency memo issued in RFD-03 dated 30.09.2024 for the reason that the admissibility of refund cannot be determined by way of a deficiency memo and has to be determined by issuing of show cause notice and following the procedure established by law(Annexure P6); C. Pending Admission, Hearing and Final disposal of this petition, be pleased to direct respondent No.3 or respondent no.1 to refund the amount deposited by the petitioner vid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner preferred this petition. 7. Learned advocate Ms. Gupta for the petitioner submitted that the respondent authorities could not have rejected the refund application while issuing deficiency memo in FORM GST RFD-03 as such deficiency memo can be issued in Rule 90(3) of the Central/State Goods and Service Tax Rules, 2017 (for short 'the GST Rules'). 7.1 It was submitted that by impugned deficiency memo dated 30.09.2024, refund application of the petitioner has been rejected by stating that "Refund not allowed in cases payment voluntary by DRC-03". 7.2 It was submitted that as per Subrule (3) of Rule 90 of the GST Rules, the respondent No. 4 was required to issue deficiency memo depicting the deficiency in the refund application and could not have rejected the refund on any reason. 8. The aforesaid submissions of the learned advocate for the petitioner could not be controverted by the learned AGP Ms. Shah after referring to Rules 89 and 90 of the GST Rules. The affidavit filed on behalf of respondent No. 2 is in fact of respondent No. 4-Deputy Commissioner of State Tax and the same is accordingly treated as the same is filed by respondent No. 4. 9. On perusal of the affida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , after adjusting the tax payable by the applicant out of the advance tax deposited by him under section 27 at the time of registration, shall be claimed in the last return required to be furnished by him. [Explanation.-For the purposes of this sub-rule, ― "specified officer" means a "specified officer" or an "authorised officer" as defined under rule 2 of the Special Economic Zone Rules, 2006.] [(1A) Any person, claiming refund under section 77 of the Act of any tax paid by him, in respect of a transaction considered by him to be an intra-State supply, which is subsequently held to be an inter-State supply, may, before the expiry of a period of two years from the date of payment of the tax on the inter-State supply, file an application electronically in FORM GST RFD-01 through the common portal, either directly or through a Facilitation Centre notified by the Commissioner: Provided that the said application may, as regard to any payment of tax on inter-State supply before coming into force of this sub-rule, be filed before the expiry of a period of two years from the date on which this subrule comes into force.] "Rule 90. Acknowledgement.- (1) Where the applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication in FORM GST RFD-06 sanctioning the amount of refund or to grant an opportunity of hearing by issuing notice in FROM GST RFD-08. 12. Rule 92 of the Rules reads as under: "Rule 92. Order sanctioning refund.- (1) Where, upon examination of the application, the proper officer is satisfied that a refund under subsection (5) of section 54 is due and payable to the applicant, he shall make an order in FORM GST RFD-06 sanctioning the amount of refund to which the applicant is entitled, mentioning therein the amount, if any, refunded to him on a provisional basis under sub-section (6) of section 54, amount adjusted against any outstanding demand under the Act or under any existing law and the balance amount refundable: [****] [(1A)Where, upon examination of the application of refund of any amount paid as tax other than the refund of tax paid on zero-rated supplies or deemed export, the proper officer is satisfied that a refund under subsection (5) of section 54 of the Act is due and payable to the applicant, he shall make an order in FORM GST RFD-06 sanctioning the amount of refund to be paid, in cash, proportionate to the amount debited in cash against the total amount ..... 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