TMI Blog2021 (5) TMI 936X X X X Extracts X X X X X X X X Extracts X X X X ..... ars and guidelines issued from time to time. Moreover, in the present case, the appellant has confessed himself that the excess amount of tax has been paid inadvertently due to mistake of their staff and the mistake has been committed by the appellant himself not by the department. The adjudicating authority while passing the Orders in Original has taken the relevant date for refund claims i.e. the GSTR-3B filing date as per Section 54(1) of the CGST Act, 2017 for counting the limitation period of two year and on this basis the adjudicating authority has held that the refund claims filed by the appellant is barred by limitation. The refund claims were required to be filed within two years from the relevant date (i.e. the GSTR-3B filing date) but the appellant has failed to do so. There are no reason to interfere in the impugned orders passed by the adjudicating authority - refund claims had been correctly rejected on the grounds as hit by limitation as per Section 54(1) of the CGST Act, 2017 - appeal dismissed. - 111-113 (JPM) CGST/JPR/2020 - - - Dated:- 13-11-2020 - Shri J.P. Meena, Additional Commissioner (Appeals) ORDER These three appeals have been filed under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also the refund claim was filed in the category of excess payment of tax and excess payment of tax falls under the phrase any other amount paid as prescribed under sub-section (1) of Section 54 of the CGST Act, 2017. 3. Being aggrieved with the impugned orders, the appellant has filed these appeals on the following grounds which may be summarized as under :- 1. 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 1.1 It is submitted that the Assistant Commissioner has rejected the refund claim on the ground that the appellant has filed a refund application for the tax period July-2017, September-2017 and October-2017 beyond 2 years of the relevant dates (i.e. 28-8-2017), (20-10-2017) (i.e. 20-11-2017) (i.e. the GSTR-3B filing dates) as per Section 54(1) of the CGST Act, 2017. The Assistant Commissioner in Para-2 of the impugned order has observed that the refund claim was filed in the category of excess payment of tax and excess payment of tax falls under the phrase any other amount paid of section 54(1) of the CGST Act, 2017 and thus the time limit to file the refund application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund for any amount paid which is not in the nature of tax. 1.8 Further, it is substantiated in below paras that the excess amount paid by the appellant does not partake the character of tax inasmuch as the said amount was inadvertently paid by the appellant due to mistake. 1.9 Thus, time limit to file refund application under Section 54(1) of the CGST Act, 2017 cannot be applied as the said section provides for refund of tax. 1.10 However, without prejudice to the above submission, assuming but not admitting, the relevant date if any to be considered, the should be reckoned from the date of filing the annual return for the period 2017-18 as filed under GSTR-9, since the appellant was in a position to deduce that there is an excess payment only on filing of GSTR-9. 1.11 It is further submitted that the appellant had made the above submissions while filing the reply in RFD-09, however the same is not taken into consideration and no finding has been given in respect of the said submission in the impugned order. 2. The amount paid by mistake does not take the character of tax and is retained by the revenue without the authority of law. Therefore time limit to file a r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istered person after furnishing a return under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (4) or sub-section (5) discovers any omission or incorrect particulars therein, other than as a result of scrutiny, audit, inspection or enforcement activity by the tax authorities, he shall rectify such omission or incorrect particulars [in such form and manner as may be prescribed], subject to payment of interest under this Act : Provided that no such rectification of any omission or incorrect particulars shall be allowed after the due date for furnishing of return for the month of September or second quarter following [the end of the financial year to which such details pertain], or the actual date of furnishing of relevant annual return, whichever is earlier. 3.2 It is evident from the Section 39(9) of the CGST Act, 2017 reproduced above that it provides that if any registered person after furnishing a return under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (4) or sub-section (5) of Section 39, discovers any omission or incorrect particulars therein, other than as a result of scrutiny, audit, inspection or enforcement activity by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, electronically, within twenty days after the end of a calendar month or within seven days after the last day of the period of registration specified under sub-section (1) of Section 27, whichever is earlier. GSTR5 3.3 It is submitted that in the present case, the appellant has paid the excess amount of GST out of mistake on accrual/provisional bills and GST was discharged twice, once on provisional bills and again on finalization of the provisional bills. The said fact could be substantiated from the calculation showing comparison of Outward taxable value as per books (Net of B2B and CN) outward taxable value as per GSTR-1 (Net of B2B and CN). The said calculation sheet is attached. It is submitted that the appellant has paid the excess amount in cash via GSTR 3B filed for the month of July 2017, September-2017 October 2017. It is further submitted that the taxable value of outward supply shown in GSTR 3B is higher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ident 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 goods or services or both on which the tax is payable on reverse charge basis under this Act and inward supplies of goods or services or both taxable under the Integrated Goods and Services Tax Act or on which integrated goods and services tax is payable under section 3 of the Customs Tariff Act, 1975 (51 of 1975), and credit or debit notes received in respect of such supplies during a tax period after the tenth day but on or before the fifteenth day of the month succeeding the tax period in such form and manner as may be prescribed : 3.6 It is submitted that the prescribed form for furnishing the details of outward supplies as provided under Section 37(1) reproduced above is Form GSTR-1. It is submitted that there is no mechanism to revise the GSTR 1 at the GST portal. 3.7 Further, the prescribed Form for furnishing the details of inward supplies as provided under Section 38(2) reproduced above is Form GSTR-2 and the said Form GSTR-2 is not o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 in the impugned order wrt the above submission. 5. The order does not dispute that the excess payment made by the appellant. 5.1 It is submitted that the order has been passed on the ground that the refund application filed by the appellant is beyond the expiry of 2 years from the relevant date wherein the relevant date considered is date of filing of GSTR-3B. 5.2 The order nowhere disputes the excess payment made by the appellant. 6. Interpretation of Statute The issue involved relates to interpretation of the statute. It is a matter of interpretation that the appellant had bona fide belief that the excess amount paid by the appellant is not in the nature of tax and thus time limit as provided under Section 54(1) of CGST Act, 2017 does not apply. The Hon ble. Tribunal has consistently held that the penalty should not be imposed where the question of interpretation of any statutory provision are involved. The appellant relies upon the following judgments for the above proposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears 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 has also observed that the refund claims were filed in the category of excess payment of tax and excess payment of tax falls under the phrase any other amount paid as per Section 54(1) of the CGST Act, 2017 whereas, appellant s contention is that time limit as prescribed under Section 54(1) of the CGST Act, 2017 is not applicable in this case. 6. As per Section 54(1) of the CGST Act, 2017- Any person claiming refund of any tax and interest, if any, paid on such tax or any other amount paid by him, may make an application before the expiry of two years from the relevant date in such form and manner as may be prescribed : Provided that a registered person, claiming refund of any balance in the electronic cash ledger in accordance with the provisions of sub-section (6) of section 49, may claim such refund in the return furnished under section 39 in such manner as may be prescribed. Relevant date means - (a) in the case of goods exported out of India where a refund of tax paid is available in respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son, 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, for every calendar month or part thereof, furnish, a return, electronically, of inward and outward supplies of goods or services or both, input tax credit availed, tax payable, tax paid and such other particulars, in such form and manner, and within such time, as may be prescribed : Provided that the Government may, on the recommendations of the Council, notify certain class of registered persons who shall furnish a return for every quarter or part thereof, subject to such conditions and restrictions as may be specified therein. 8. As per Section 39(9) of the CGST Act, 2017-Subject to the provisions of Sections 37 and 38, if any registered person after furnishing a return under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (4) or sub-section (5) discovers any omission or incorrect particulars therein, other than as a result of scrutiny, audit, inspection or enforcement activity by the tax authorities, he shall rectify such omission or incorrect particulars [in such form and manner as m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant has confessed himself that the excess amount of tax has been paid inadvertently due to mistake of their staff and the mistake has been committed by the appellant himself not by the department. The adjudicating authority while passing the Orders in Original has taken the relevant date for refund claims i.e. the GSTR-3B filing date as per Section 54(1) of the CGST Act, 2017 for counting the limitation period of two year and on this basis the adjudicating authority has held that the refund claims filed by the appellant is barred by limitation. The refund claims were required to be filed within two years from the relevant date (i.e. the GSTR-3B filing date) but the appellant has failed to do so. The limitation period prescribed under Section 54(1) of the CGST Act, 2017 is rightly applicable for refund of any amount paid under CGST Act, 2017. The appellant has cited various case laws in their defence which are squarely not applicable in the present case as the facts of those cases are different from the present case. I do not find force in the contention of the appellant. 11. In view of the above discussion and findings and as per legal provisions I do not find any reason t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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