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TMI Blog2021 (5) TMI 936X X X X Extracts X X X X X X X X Extracts X X X X ..... Application for refund claim of excess Tax paid for the period of July-2017 Rs. 65,274/- Refund rejected Rs. 65,274/-. 2. APPL/JPR/CGST/JP/45/VII/2020/ RFD-06, dated 23-4-2020 Application for refund claim of excess Tax paid for the period of September-2017 Rs. 43,56,732/- Refund rejected Rs. 43,56,732/- 3. APPL/JPR/CGST/JP/44/VII/2020/ RFD-06, dated 23-4-2020 Application for refund claim of excess Tax paid for the period of October-2017 Rs. 6,96,332/- Refund rejected Rs. 6,96,332/-. 2. Brief facts of the case : 2.1 The appellant having GSTIN 08AACCG2107K1ZT is engaged in providing passive infrastructure telecommunication services has filed refund claims under Section 54 of the CGST Act, 2017 for the period and amount mentioned in Para-1 above in Table of column Nos. 4 & 5 on account of excess payment of GST. On examination of refund claims filed by the appellant, the adjudicating authority observed that the refund claims were liable to be rejected on the grounds hit by limitation of time limit as the appellant has filed refund claims after expiry of 2 years from the relevant dates (i.e. GSTR 3B filing date) i.e. 28-8-2017, 20-10-2017 & 20-11-2017 and also th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also provides for the phrase "any other amount paid". Therefore, without prejudice to any submission, even if it is assumed but not admitted that the excess amount paid by the appellant falls under the phrase "any other amount paid" then also the time limit provided under Section 54 shall not apply as the phrase "any other amount paid" shall be read with the phrase "refund of any tax and interest" as per the principle of "ejusdem generis". The "any other amount paid" has to be in the nature of tax. 1.5 It is submitted that the principle of "ejusdem generis" and "noscitur a sociis" are essentially principle of construction of the statute, that provide that the words used in a statute should be interpreted along with the words in appellant which they occur i.e. the word occurring together derive the colour from each other. 1.6 Thus, it is submitted that as per the principle of ejusdem generis the phrase "any other amount paid" shall be read along with the phrase "refund of any tax and interest". The "any other amount paid" has to be in the nature of tax. 1.7 It is further submitted that the provision of Section 54 of the CGST Act, 2017 does not provide the time l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017 cannot be applied as the said section provides for refund of tax. 2.3 The Assistant Commissioner in para 3 has observed that the above judgment cited by the appellant in reply to the show cause notice relate to the pre GST era and it is not fit for application in GST law as the provisions under GST law are different from the indirect tax provisions existing before GST law provision. 2.4 It is submitted that the judgments cited in the old law i.e. the pre-GST era, act as a precedent in the GST era. The refund provisions under Central Excise Act, 1944 have been provided under Section 11 of the said Act. 3. The GST portal does not allow the mechanism to revise GSTR-3B. 3.1 The Assistant Commissioner in para 4 has observed that the GST law as per Section 39(9) of the CGST Act, 2017 provides ample time to rectify any omission or incorrect particulars in furnishing the returns and that the appellant has failed to make rectification of any omission or incorrect particulars in furnishing of returns under Section 39(9) of the CGST Act, 2017 in the prescribed time limit. The provision of Section 39(9) of the CGST Act, 2017 is reproduced below : (9) Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions as may be specified therein. GSTR3 2. Section 39(2) A registered person paying tax under the provisions of Section 10, shall, for each financial year or part thereof, furnish a return, electronically, of turnover in the State or Union territory, inward supplies of goods or services or both, tax payable, tax paid and such other particulars in such form and manner, and within such time, as may be prescribed CMP 08 which was earlier GSTR4 3. Section 39(3) Every registered person required to deduct tax at source under the provisions of Section 51 shall furnish, in such form and manner as may be prescribed, a return, electronically, for the month in which such deductions have been made within ten days after the end of such month. GSTR 7 4 Section 39(4) Every taxable person registered as an Input Service Distributor shall, for every calendar month or part thereof, furnish, in such form and manner as may be prescribed, a return, electronically, within thirteen days after the end of such month. GSTR6 5 Section 39(5) Every registered non-resident taxable person shall, for every calendar month or part thereof, furnish, in such form and manner as may be prescribed, a return, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing a tax period on or before the tenth day of the month succeeding the said tax period and such details shall be communicated to the recipient of the said supplies within such time and in such manner as may be prescribed : 38.(1) Every registered person, other than an Input Service Distributor or a non-resident taxable person or a person paying tax under the provisions of section 10 or, section 51 or section 52, shall verify, validate, modify or delete, if required, the details relating to outward supplies and credit or debit notes communicated under sub-section (1) of section 37 to prepare the details of his inward supplies and credit or debit notes and may include therein, the details of inward supplies and credit or debit notes received by him in respect of such supplies that have not been declared by the supplier under sub-section (1) of section 37. (2) Every registered person, other than an Input Service Distributor or a non-resident taxable person or a person paying tax under the provisions of section 10 or section 51 or section 52, shall furnish, electronically, the details of inward supplies of taxable goods or services or both, including inward supplies of g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct particulars. In the present case, it is submitted that the appellant discovered the fact of excess amount paid by the company only when filing the Annual return filed for the financial year 2017-18. The excess amount inadvertently paid by the company is also recorded in the Annual return filed for the financial year 2017-18. The copy of the Annual return filed for the financial year 2017-18 is attached. Thus, it is submitted that the appellant filed the refund application as they discovered the excess amount paid. 3.12 In view of the above submissions, it is submitted that the observation of the Assistant Commissioner is liable to be set side. 4. The appellant has paid the excess amount of GST by mistake and lack of knowledge of the accountant. 4.2 Further the said excess payment of GST is also recorded in GSTR-9 filed by the appellant for the period 2017-18. The copy of GSTR-9 is already attached. 4.3 Thus, in view of the above, it is submitted that when the excess amount is paid by mistake, it does not partake the character of tax inasmuch there was no GST liability to that extent. 4.4 No findings has been given by the Assistant Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) E.L. T. 358, * M/s. Parijat Construction - 2018 (359) E.L.T. 113 (Bom.). * M/s. Geojit BNP Paribas Financial Services Ltd. - 2015 (39) S.T.R. 706 (Ker.). * M/s. National Institute of Public Finance and Policy, 2018 (8) TMI 1524 - Delhi High Court = 2019 (20) G.S.T.L. 330 (Del.). 4. Personal Hearing in the case was held on 14-10-2020. Shri Naveen Mittal, Senior Executive Accounts and Shri B.P. Sharma, DGM (Accounts & Finance) appeared for personal hearing through video conference. He explained the case in detail and reiterated the submission made in the grounds of appeal and requested to decided the case at the earliest. 5. I have carefully gone through the case records and submission made in the appeal memorandum as well as oral submission at the time of personal hearing on 14-10-2020. I find that the adjudicating authority has rejected the refund claims on the grounds that the appellant has filed refund claims for the period July, 2017, September, 2017 & October, 2017 after expiry of 2 years from the relevant dates (i.e. GSTR 3B filing date) i.e. 28-8-2017, 20-10-2017 & 20-11-2017 as per section 54(1) of the CGST Act, 2017. Further, the adjudicating authority h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... becomes refundable as a consequence of judgment, decree, order or direction of the Appellate Authority, Appellate Tribunal or any court, the date of communication of such judgment, decree, order or direction; (e) in the case of refund of unutilised input tax credit under clause (ii) of the first proviso to sub-section (3), the due date for furnishing of return under section 39 for the period in which such claim for refund arises;] (f) in the case where tax is paid provisionally under this Act or the rules made thereunder, the date of adjustment of tax after the final assessment thereof; (g) in the case of a person, other than the supplier, the date of receipt of goods or services or both by such person; and (h) in any other case, the date of payment of tax. Thus, it is clear from the provision of Section 54(1) that any application for refund for any amount paid under CGST Act, 2017 has to be filed within two years from the relevant date. In the instant case, relevant date is the date of filing of GSTR 3B return. 7. Further as per Section 39 of the CGST Act, 2017 - (1) Every registered person, other than an Input Service Distributor or a non-resid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B of FORM GSTR-1, he can rectify the same in Table 9 of FORM GSTR-1. 3.1 It is advised that while processing refund claims on account of zero rated supplies, information contained in Table 9 of FORM GSTR-1 of the subsequent tax periods should be taken into cognizance, wherever applicable. 3.2 Field formations are also advised to refer to Circular No. 26/26/2017-GST, dated 29th December, 2017 [2018 (8) G.S.T.L. C3], wherein the procedure for rectification of errors made while filing the returns in FORM GSTR-3B has been provided. Therefore, in case of discrepancies between the data furnished by the taxpayer in FORM GSTR-3B and FORM GSTR-1, the officer shall refer to the said Circular and process the refund application accordingly. 10. I find that the appellant has never made any concerted efforts for rectification of errors made while filing their FORM GSTR-3B nor any corroborative evidence regarding the above has been provided whereas, sufficient period of time was made available to the appellant for rectification of errors through various circulars and guidelines issued from time to time. Moreover, in the present case, the appellant has confessed himself that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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