TMI Blog2021 (1) TMI 701X X X X Extracts X X X X X X X X Extracts X X X X ..... allotted ticket no. 201903045258658 and also to the representation dated 14.03.2019 (Annexure-10) and subsequent communications. There is no dispute that the last date for submission of refund application was 31.03.2019 and as per para 8 of the counter-affidavit filed by the Respondent nos. 1 to 4, the ticket allotted to the petitioner was closed on 25.03.2019 with the aforesaid resolution comments quoted in the said counter affidavit. This court is of the considered view that mere resolution comment is not sufficient, it was also required to be communicated to the petitioner so that the petitioner could have complied with the directions issued in the resolution comments in order to claim its refund. It is not in dispute that if the petitioner could adhere to the directions mentioned in the resolution comment, the petitioner could have filed the application for refund of compensation cess for the periods involved in this case i.e 2017-18 and also for 2018-19. This court is of the considered view that the petitioner cannot be made to suffer on account of laches on the part of the respondents in not communicating the resolution comment to the petitioner and accordingly this is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of technical difficulty was not found when logged on to the common portal and this was also communicated to the petitioner - The said judgement also does not apply to the present case particularly in view of the fact that the grievance raised by the petitioner was duly considered and responded to by the department favorably, but the same was never communicated to the petitioner. In the present case, the validity of Rule 117 of Central Goods and Services Tax Rules is not under challenge and the entire case rests on the prejudice caused to the petitioner due to non- communication of resolution comment to the petitioner - As a cumulative effect of the aforesaid findings of non- communication of resolution comment to the petitioner, which has been communicated to the petitioner for the first time through the counter affidavit filed by the respondent no. 4, the petitioner is held to be entitled to take steps in compliance of the directions contained in the resolution comment quoted above. Consequently, the respondents are directed either to open GSTN portal enabling the petitioner to file its application for refund in GST RFD-01 or to manually accept the application for refund o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd also imports Coal from outside the country. 6. Goods and Services Tax (for short 'GST') Act, 2017 as well as The Goods and Services Tax (Compensation of States) Act, 2017 (for short 'Compensation Act'), have been made effective from 1st July, 2017. Compensation Act, inter alia, provides for levy of Compensation Cess in respect of certain specified commodities and coal is one of such commodities, on which compensation cess is leviable even on imported Coal by virtue of Reverse Charge Mechanism. As per the provision of Section 16 the Central Goods and Services Act, 2017 and/or the Jharkhand State Goods and Service Tax Act, 2017, excess ITC available at the hands of the petitioner could have been claimed by the petitioner as refund under the said Acts. 7. Section 11 of the Compensation Act provides that the compensation cess payable on inputs would be adjusted against the liability of Compensation Cess only. Accordingly, in case, compensation cess accumulated as ITC was not utilized for payment of outward liability of compensation cess, the same would have remained as ITC at the hands of the dealer, which is not adjustable against the liability of Central GS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on GSTN Portal and filed GST RFD-01 Form for refund, even the claim of refund of the petitioner was computed in terms of Section 54(3) of the CGST/SGST Act, 2017 read with Rule 89 of the CGST/SGST Rules and a sum of ₹ 1,78,38,970/- was determined as refundable to the petitioner for the financial year 2017-18 and the petitioner has stated that refund application in GST RFD-01 Form could not be submitted online by the petitioner on GSTN Portal, as the option of 'Save', 'Review' and 'Submit' as occurring on GSTN Portal did not get Active . In support of the aforesaid submission, the petitioner has annexed the PDF Screenshot of the Refund Application of the petitioner as Annexure-8 to this writ petition. 14. When the Petitioner was unable to upload its application on 4th March, 2019, the Petitioner, on the same day itself, made a complaint in the Helpdesk of GSTN Portal and the Petitioner was allotted Ticket No. 201903045258658 dated 4th March, 2019. It is the specific case of the petitioner that in spite of allocation of said Ticket Number, no response was received by the Petitioner from the Helpdesk intimating the reason as to why the application for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Portal due to technical glitches and, on the other hand, even subsequent application for the period 2018-19 was not being accepted on GSTN Portal with a message directing the Petitioner to first file application for refund for the period 2017-18. The further grievance of the petitioner is that while filing application for refund for the period 2018-19, the petitioner could have also claimed the amount of unutilized ITC towards compensation cess as refund pertaining to the financial year 2017-18, as the same was within the period of limitation, but the Petitioner was even prevented from doing so on the GSTN Portal in view of the message that the Petitioner is first required to submit its application for refund for the financial year 2017-18. 20. The Petitioner filed reminder representations before the Respondent-authorities including the Respondent Nos. 5 and 6 vide its reminder representations dated 31st March, 2019, 24th April, 2019, 7th June, 2019 and 8th July, 2019, but in spite of said reminder representations, the issue regarding filing of refund application of the Petitioner pertaining to the financial year 2017-18 was not resolved. The Petitioner once again filed applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel appearing for the Respondent nos. 1 to 4 has referred to para nos. 5, 8 and 9 of the affidavit filed on behalf of the said respondents and submits that the averment of the petitioner that the form RFD-01A i.e. refund application could not be filed on GST portal as the option 'Save', 'Review' and 'Submit' as occurring on GST portal did not get activated, is wrong and misconceived and as per the application process, the application gets ready for filing only when after entering all the data in the application, the bank account is selected, the supporting documents are uploaded, the declaration box is checked, the undertaking box is checked and the information regarding Bond/LUT is indicated online in the application form and only after that application can be submitted and filed on the GST portal. It is further the case of the respondent nos. 1 to 4 that Annexure- 8 indicates that the aforesaid action was not taken by the petitioner and therefore, the application could not be filed and accordingly, it is contended that the non-filing of refund application is due to non-adherence to the filing process by the petitioner and not due to any glitch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs. Assistant Commissioner and Another) (ii) 2020 SCC OnLine Bom 437 (Nelco Limited Vs. Union of India and Others) (iii) 2020 SCC OnLine Raj 381 (Shree Motors Vs. Union of India and Ors. with analogous case) (iv) 2018 (19) GSTL 228 (Willowood Chemicals Pvt. Ltd. Vs. Union of India) Rejoinder of the petitioner 31. A rejoinder has been filed to the counter-affidavit filed by respondent nos. 1 to 4 and the allegation that the petitioner did not adhere to the filing process has been denied and it has also been stated that the resolution comment which has been quoted in para 8 of the counter affidavit was never communicated to the petitioner. It is further the case that even if for the sake of argument, it is presumed that the petitioner did not click/check the mandatory fields in the refund application due to which its application for refund was not being accepted, the resolution comments would have indicated the petitioner the said lacuna. On the contrary, the resolution comments do not whisper a word regarding non-checking of the requisite fields in the refund application and the petitioner has been advised to delete the existing sheet and download the offli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in the account of the petitioner. 34. The learned counsel for the petitioner has submitted that the resolution of problem as quoted in the counter-affidavit filed by respondent no. 4, having not been communicated to the petitioner, the petitioner cannot be put to any disadvantageous position on account of non-adherence to the directions contained therein. It has been reiterated that had the said resolution been communicated to the petitioner, the petitioner could have availed of the opportunity and the said communication has been communicated to the petitioner for the first time only through the counter-affidavit. It is submitted that in such circumstances, the respondents be directed to allow the petitioner to file refund application for the period 2017-18 and 2018-19 in connection with refund of compensation cess. Findings of this Court 35. After having heard the learned counsel for the parties and after considering the materials on record, this court finds that the present matter relates to claim of refund of Compensation Cess paid by the petitioner for the financial year 2017-18 and 2018-19 under the provisions of The Goods and Services Tax (Compensation of Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of law across field formations, the Board, in exercise of its powers conferred by section 168 (1) of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as CGST Act ), hereby clarifies the issues detailed hereunder: .......................................................... .......................................................... Issues related to refund of accumulated Input Tax Credit of Compensation Cess: 9. Several representations have been received requesting clarifications on certain issues related to refund of accumulated input tax credit of compensation cess on account of zero - rated supplies made under Bond/Letter of Undertaking. These issues have been examined and are clarified as below: a) Issue: A registered person uses inputs on which compensation cess is leviable E.g. coal) to export goods on which there is no levy of compensation cess (E.g. aluminum). For the period July, 2017 to May, 2018, no ITC is availed of the compensation cess paid on the inputs received during this period. ITC is only availed of the CGST, SGST/UTGST or IGST charged on the invoices for these inputs. This ITC is utilized for payment of IGST on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... city is not available? Clarification: There is no distinction between intermediate goods or services and final goods or services under GST. Inputs have been clearly defined to include any goods other than capital goods used or intended to be used by a supplier in the course of furtherance of business. Since coal is an input used in the production of aluminium, albeit indirectly through the captive generation of electricity, which is directly connected with the business of the registered person, input tax credit in relation to the same cannot be denied. c) Issue: A registered person avails ITC of compensation cess (say, of ₹ 100/-) paid on purchases of coal every month. At the same time, he reverses a certain proportion (say, half i.e. ₹ 50/-) of the ITC of compensation cess so availed on purchases of coal which are used in making zero rated outward supplies. Both these details are entered in the FORM GSTR-3B filed for the month as a result of which an amount of ₹ 50/- only is credited in the electronic credit ledger. The reversed amount (₹ 50/-) is then shown as a 'cost' in the books of accounts of the registered person. However, the regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of said Ticket Number, no response was received by the Petitioner from the Helpdesk intimating the reason as to why the application for refund for the financial year 2017-18 was not being accepted on GSTN Portal. Specific statement to this effect has been made in para 27 of the writ petition which is quoted as under:- 27. That it is stated that when the Petitioner was unable to upload its application on 04th March, 2019, the Petitioner, on the same day itself, made a complaint in the Helpdesk of GSTN Portal and the Petitioner was allotted Ticket No. 201903045258658 dated 4th March, 2019. It is stated that in spite of the fact that the Petitioner was allotted said Ticket Number, no response was received by the Petitioner from the Helpdesk intimating the reason as to why the application for refund for the financial year 2017-18 is not being accepted on GSTN Portal. Under the said circumstances, the Petitioner filed a detailed representation before the Respondent- Commissioner of State Tax on 14th March, 2019 and also filed a detailed representation before the Deputy Commissioner of State Tax (Respondent No. 6) bringing the aforesaid fact to the knowledge of the said author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e aforesaid fact to the knowledge of the said authorities to resolve the problem so that refund application of the Petitioner can be uploaded on GSTN Portal and/or the claim of refund of the Petitioner of its unutilized ITC towards compensation cess can be processed. 39. This Court finds that the allegation regarding non resolution of the problem pursuant to complaint in help-desk of GSTN portal on 04.03.2019, for which the petitioner was allocated ticket no. 201903045258658, was also raised in the representation dated 14.03.2019 (Annexure-10) addressed to the Commissioner of State Tax, wherein Problem being faced by the petitioner in filing Application for Refund of GST Cess in form GST RFD-01 against Export of Sponge Iron on the basis of LUT/Bond was narrated as follows:- Kind attention of your honour is drawn towards the following facts, figures and problems being faced by us:- (1) During the GST period July, 2017 to March 2018 (2017-18) and also for the subsequent period 2018-19 we were eligible for ITC of GST Compensation Cess on purchase of coal used in manufacture of Sponge Iron. As per the Provisions of GST law ITC of Cess can be utilized only against liabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the earliest. 40. In sum and substance, the argument of the learned Advocate General appearing on behalf of respondent no. 6 is that in order to avail Input Tax Credit or to avail refund of compensation cess, the procedure prescribed is required to be followed and the petitioner having not followed the procedure prescribed, it is not entitled to any relief. Further, the application of the petitioner was already rejected which is not under challenge. 41. So far as not challenging the rejection order as contained in the counter affidavit filed by the respondent no. 6 is concerned , the same has no bearing and nothing to do with the present case as argued by the learned counsel of the petitioner as the same does not relate to refund of compensation cess but it relates to ITC of IGST ( Integrated Goods and Service Tax) 42. The specific case of the respondent nos. 1 to 4 is that the petitioner did not follow the procedure and there was no technical glitch. Further, a resolution of problem was also issued, but the petitioner did not abide by the direction given in the resolution and hence, the petitioner is not entitled to any relief. 43. Said paragraph 27 of the writ pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the resolution comments in order to claim its refund. It is not in dispute that if the petitioner could adhere to the directions mentioned in the resolution comment, the petitioner could have filed the application for refund of compensation cess for the periods involved in this case i.e 2017-18 and also for 2018-19. Though the respondents have mentioned about the resolution comment and quoted in the counter affidavit but have failed to bring any material on record, and there is not even a statement in the counter affidavits, that the resolution comment was communicated to the petitioner, although the specific case of the petitioner in the writ petition itself was that in spite of generation of the complaint in help-desk of GSTN portal on 04.03.2019, for which the petitioner was allotted ticket no. 201903045258658 and also to the representation dated 14.03.2019 (Annexure-10) and subsequent communications, the petitioner did not receive any response. 46. In the aforesaid factual matrix, this court is of the considered view that the petitioner cannot be made to suffer on account of laches on the part of the respondents in not communicating the resolution comment to the petitioner a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w the scope of the issue, such a plea is not admissible having regard to the plain language of sections of the VAT Act, read along with other provisions of the said Act as referred to above. It is the specific case of the respondents that the petitioner did not follow the prescribed procedure for availing refund of Compensation cess, firstly, by not filling the columns properly and secondly, by not adhering to the directions contained in the resolution of the problem as quoted above. There is no doubt in the legal position that Input Tax Credit is a form of concession and whenever concession is given by statute or notification, the conditions thereof are to be strictly complied in order to avail such concession. However, this Court is of the considered view that the said judgement does not help the respondents in any manner. Even if it is accepted that the petitioner did not follow the prescribed procedure for availing refund of Compensation cess by not filling the columns properly, the fact remains that the respondents have claimed to have generated a resolution comment to solve the problem faced by the petitioner with a solution to apply afresh but the resolution comment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conditions. Rule 117(1) states that the person entitled to take credit of Input Tax under Section 140 would file a declaration electronically in a form known as GST TRAN-1 within 90 days and the period could be extended on the recommendation of the Council for a further period not exceeding 90 days. In the present case, there is no dispute about the aforesaid legal proposition. However, in the said case reported in 2020 SCC OnLine Bom 437 (Supra), there was another fact. The writ petitioner of the said case also had a grievance that the communication which was made by the petitioner of the said case requesting the respondents to permit filing TRAN-1 form was not answered and there was no option of manually filing TRAN-1 form. This aspect of the matter was also dealt with by the Hon'ble Bombay High Court and it was found that in the GST council meeting held on 10.03.2018, a grievance redressal mechanism was set-up to address the issue regarding uploading of TRAN- 1 and the mechanism was called IT Grievance Redressal Cell which consisted of three members and was of the view that as per the provision , if as per GST system log, there is no evidence of submission/filing o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not arbitrary, nor does it lead to a fettering of discretion by the authorities. Those registered persons who could not submit the declaration by the due date because of technical difficulties on the common portal as can be evidenced from the system logs are given an extension on the recommendation of the Council. Where no such evidence is forthcoming, no recommendation is made. In the Petitioner's case, no such proof emerges and, therefore, no direction as sought for can be issued. This Court finds that the Hon'ble Bombay High Court in the judgement reported in 2020 SCC OnLine Bom 437 (Supra) had entertained the plea of the petitioner regarding no response to communication regarding grievance of the petitioner, but the same was rejected considering the peculiar facts of the case. There is no doubt that the validity of Rule 117 of the Rules has been upheld and the resolution of technical difficulty by granting further concession as per Rule 117(1A) was also considered and clearly held that no direction could be issued to the respondents in the facts of the said case to treat the case of the petitioner as falling within the ambit of Rule 117 (1A) as the existence o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
