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2023 (2) TMI 817 - HC - GSTRefund of IGST paid on export - no show cause notice has been given nor any opportunity given to represent the adjudication process - Earlier, protection was granted from inquiry proceedings by the HC - principal grievance on the part of the petitioner is that the proceedings for scrutiny of refund of IGST for the export already made by the petitioner is initiated by the CGST Department even though the proper officer for grant of refund of IGST is the Custom Authorities and therefore, initiation of the actions on the part of the respondent is bad in law - Principles of natural justice. HELD THAT:- The order of provisional refund not being a subject matter of appeal nor is there any further proceeding in connection there with nor is any other proceedings of the Act pending for invocation of Section 39, nothing was there for the Court to hold that the order impugned before that Court without the condition precedents for exercise of such powers were satisfied and therefore, the Court held that the authority had lacked the jurisdiction. Before withholding the order, according to the Court, the Commissioner is empowered to withhold the same if he is of the opinion that such refund is likely to adversely affect the revenue. The Commissioner is required to form an opinion that grant of refund is likely to adversely affect and the fact regarding formation of such opinion needs to be reflected in the order passed under Section 39 withholding the refund. There was not a whisper as regards any opinion as envisaged and hence, the Court held that withholding of the refund was not in accordance with law. The Custom Authority having permitted the goods to be exported and the petitioner having paid the IGST on the export, the process of the refund on such IGST after clearance of the goods for export is what is being provided as Rule 96 is very clear that shipping bill of the export needs to be treated as the refund application. Grant of protection (earlier) There was no ambiguity in relation to the consignment except the wrong declaration of the address in the export documents i.e. Export Invoice Shipping Bill. The office of the Commissioner had proposed for lifting of detention of the cargo and it was urged that till the pendency of inquiry at the Customs, it was apprehended that the writ applicant may fly away or abscond if the Cargo is released and there may be heavy loss of custom refund for the different price of old mobile phone vis-a-vis old mobile phones. - The inquiry pertaining to ITC Chain was therefore, directed to be investigated by the office of the Joint Commissioner of CGST. This had made the petitioner to rush to this Court seeking to challenge this alleged action of respondent being high handed and not permitting the Rule 96 to come into operation. Refund allowed subject to enquiry proceedings. Keeping in mind the fact that this Court on noticing the overall circumstances, since had protected the writ applicant from the investigation which had been initiated, at no stage, the authority was precluded from initiating the proceedings of show cause notice. However, till date, it is not so done, therefore, to strike a balance this Court is of the firm opinion that when the export has been permitted by all concerned on the part of the respondents, the petitioner would become entitled to the refund and the same shall be paid with interest to the petitioner. Let the investigation be finalized in eight weeks’ period from the date of receipt of a copy of this order. Petition allowed.
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