9911796707
TMI Blog2021 (2) TMI 924X X X X Extracts X X X X X X X X Extracts X X X X ..... rn in terms of Rule 92(1) of CGST Rules, 2017. (c) Issue a writ of mandamus or any other appropriate writ or direction to the respondent no.2 directing to conclude the refund process in a time bound manner as per the provisions of CGST Rules, 2017. (d) Issue a writ of mandamus or any other appropriate writ or direction to the respondent no.2 directing to unblock the Electronic Credit Ledger of the petitioner. (e) Issue any other appropriate writ, order or direction which this Hon'ble Court may deem just and necessary in the circumstances of the case may also be passed. The petitioner, thus, appears to be aggrieved by nondisbursement of the provisional refund, non completion of the proceedings to disburse the full refund and also by an order whereby Electronic Credit Ledger of the petitioner has been blocked. Learned counsel representing the respondents, Shri Nag has submitted that after giving due opportunity of hearing to the petitioner the Principal Commissioner, Central Goods and Services Tax and Central Excise has taken a decision on 13.10.2020 whereby it has been ordered that the refund to the petitioner may be withheld till completion of investigation in the case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiny of the claim and the evidence and on being prima facie satisfied that the amount claimed is due to the applicant in accordance with section 54(6) of the Act, shall make an order sanctioning the amount of refund on a provisional basis. The time period provided for passing an order for refund on provisional basis as provided under Rule 91(2) is seven days from the date of the acknowledgment under sub-rule (1) or subrule (2) of the Rule, 90. It has been submitted by the learned counsel for the petitioner that the application was made by the petitioner on 26.05.2020 and after scrutiny, acknowledgment in Form RFD-02 was issued by the department within 2-3 days from the date of submission of the application and as per the statutory requirement of sub rule 2 of rule 91 the proper officer ought to have passed an order regarding provisional refund within seven days, however, despite long period having elapsed since the acknowledgment was issued, no such order has yet been passed. As observed above, the submission of the learned counsel for the respondents is that neither orders sanctioning the provisional refund, nor orders sanctioning final refund in this case has been passed for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atisfied that a refund under sub-section (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: Provided that in cases where the amount of refund is completely adjusted against any outstanding demand under the Act or under any existing law, an order giving details of the adjustment shall be issued in Part A of Form GST RFD- 07. [(1-A) 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 sub-section (5) of Section 54 of the Act is due and payable to the applicant, he shall make an order in Form RFD-06 sanctioning the amount of refund to be paid, in cash, proportionate to the amount debited in cash against the total amount paid for discharging tax liability for the relevant period, mentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (4-A) The Central Government shall disburse the refund based on the consolidated payment advice issued under sub-rule (4).] (5) Where the proper officer is satisfied that the amount refundable under sub-rule (1) [or sub-rule (1-A)] or sub-rule (2) is not payable to the applicant under subsection (8) of Section 54, he shall make an order in Form GST RFD-06 and issue [a payment order] in Form GST RFD-05, for the amount of refund to be credited to the Consumer Welfare Fund." Sub rule 2 of rule 92 as quoted above, requires the proper officer or the Commissioner to pass an order in Part B of FORM GST RFD- 07, if he is of the opinion that the amount of refund is liable to be withheld under sub section 10 or sub section 11 of section 54, as the case may be. Since GST RFD-07 is appended with the rules and as such the said form also has a statutory force. Part B of FORM GST RFD-07 is also extracted herein below: "PART-B ORDER FOR WITHHOLDING THE REFUND This has reference to your refund application referred to above and information/documents furnished in the matter. The amount of refund sanctioned to you has been withheld due to the following reasons: Refund Order No.: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reason regarding on which basis the Principal Commissioner has arrived at his opinion that the refund claimed by the petitioner is likely to adversely affect the revenue in the investigation (which is said to be pending) and such opinion is based on some material indicating some malfeasance or fraud said to have been committed by the petitioner. Moreover, the order as mandated by sub rule 2 of rule 92 has not been passed in Part B of Form GST RFD- 07 which as observed above, also has a column where the officer concerned has to indicate "reasons for withholding the refund". We also notice that the decision dated 13.10.2020 was not communicated to the petitioner. At this juncture, Shri Nag, learned counsel representing the respondents has stated that the authorities will communicate the decision in Part B of Form GST RFD-07. We are unable to agree with the said offer given by Shri Nag for the reason that Part B of Form GST RFD07 is not a form for the purposes of communicating the decision; rather it is a form in which an order has to be passed keeping in view the requirement of section 54(11) of the Act read with Rule 92(2) of the Rules. The said form contains a separate specific c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
