TMI Blog2021 (6) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... aning of relevant date may be reckoned within 2 years from the due date of furnishing of return under Section 39 of the CGST Act, 2017 relating to the period in which such claim for refund arises. The amended provisions under sub-section (14) of Section 54 of the CGST Act, 2017 for relevant date was made effective from 1-2-2019, while the fresh refund application was filed by the appellant on 25-1-2020 which absolutely beyond the two years from the relevant date - the appellant s contention is not acceptable that their refund application in respect of inverted duty structure should be processed as per un-amended provisions of sub-section (14) of Section 54 of the CGST Act, 2017 since the tax period of refund claim in this case pertains to December, 2017. The appeal is dismissed. - 01 (MAA)CGST/JPR/2020 - - - Dated:- 1-1-2021 - Shri Manzoor Ali Ansari, Additional Commissioner (Appeals) ORDER This appeal has been filed under Section 107 of the Central Goods and Services Tax Act, 2017 by M/s. Nirmal Industries Private Limited., 4A Unit-11, Matasya Industrial Area, MIA District-Alwar (hereinafter also referred to as the appellant ) against the Order-in-Original refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies), except supplies of goods or services or both as may be notified by the Government on the recommendations of the Council : (Emphasis Supplied) (A.3) In view of the above, the appellant had claimed refund amounting to ₹ 11,47,263/- related to SGST which accumulated due to input tax credit on account of inverted duty structure for the month of December, 2017. (A.4) As per Section 54(1) of the CGST Act, the application for the refund of tax may be filed within 2 years from the relevant date. The relevant extract of Section 54(1) is reproduced below : (1) Any person claiming refund of any tax and interest, if any, paid on such lax 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 : [Emphasis Supplied] (A.5) The section further explains the meaning of relevant date for the purpose of claiming the refund in case of inverted duty structure. Since the enforcement of the law, relevant date in this case was the end of the financial year in which such refund claim arises. The relevant extract of explanation to Section 54(14) is as follows : Explanation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant in FORM GST RFD-03 through the common portal electronically, requiring him to file afresh refund application after rectification of such deficiencies. [Emphasis Supplied) (A.10) It is also worthwhile to bring to your kind notice that there is Circular No. 125/44/19-GST, dated 18-11-2019 which provides that the fresh refund application in response to deficiency memo must also be filed within the said time limit of 2 years which is applicable for original refund application. (A.11) That in light of the amendment made in Explanation to Section 54, the AO was of the view that the said amendment is applicable to all the application filed before or after 1st Feb., 2019 and therefore, the refund application for the period Dec., 2017 in the present case must have been filed by 20th Jan., 2020 i.e. within 2 years from the end of the due date of filing of return u/s 39 for the month in which refund arises and the original refund application was filed by 20th Jan., 2020 i.e. within the prescribed time. But in view of Rule 90(3), the follow up refund application filed in response to deficiency memo was treated as fresh refund application and that application according to the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions of Rule 90(3) and Circular No. 125/44/19, dated 18-11-2019. Hence, all the conditions of Section 54, Rule 90(3) and that of the Circular were satisfied as this rectified refund application was also in time as per our view of relevant date being 31st March, 2020 and therefore, the rejection of refund application in this situation is illegal, bad in law and arbitrary. (A.15) That any law or amendment needs to have a nexus with the basic structure of the constitution. Legal Maxim nova constitutio fuluris formam imponere debet non praeteritis , i.e. a new law ought to regulate what is to follow, not the past , contain a principle of presumption that all the acts done before the new law should not be affected by such law. (A.16) That Article 20(1) of Constitution of India itself provides protection against the law that retrospectively affects the legal consequences of an act done or a liability/right vested before the enactment of such law. It provides that punishment for any offence cannot be greater than the punishment decided in law in force at the time of such act of offence. It does not matter if such punishment had been increased by any amendment in law. (A.17) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther the refund pertains to any period either falling prior or after 1st Feb., 2019, the machinery provision for computing the time limit for filing of refund application in light of Circular No. 125/44/19, dated 18-11-2019 fails. (B.2) As per the amended law, the refund application was required to be filed by 20th January, 2020 (i.e. within a period of 2 years from the due date of filing of return u/s 39 for the month in which refund arose i.e. Dec., 2017). The Rule 90(3) CGST Rules provided that in case of deficiency memo fresh refund application will be filed and the Circular No. 125/44/19, dated 18-11-2019 provided that the fresh application must also be filed within the said period of 2 years winch was available for original refund application. As per these provisions, the last date for filing of original refund application as well as fresh refund application in response to deficiency memo was 20th January, 2020. (B.3) In the present case, the original refund application was required to be filed by 20th January, 2020 and it was filed on 20th January, hence the original refund application was in time and there is no dispute about this. But, when the original refund appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld have started. Thus, to remove this potential loss this deficiency feature was brought in. The appellant did simply so and filed the fresh refund in compliance of deficiency memo. It is nowhere mentioned in Section 54 or in Rule 90(3) that when a deficiency memo is issued the original refund application will loose its sanctity and will be treated as it has never been filed. Therefore, we submit that original refund application will always have its sanctity and limitation will have to be seen with respect to the date of filing of original refund application. In the instant case, the original refund application was in time and therefore, the considering the date of filing of fresh refund application filed refund application cannot be treated as time barred in response to deficiency memo. (B.5) That the Circular cannot override the law. Section 54 of the CGST Act provision as well as the Rule 90(3) does not provide any time limit for filing of fresh application in response to deficiency memo. The Circular cannot go beyond the law and cannot prescribe a time limit which is not consistent with the law. Circular should be consistent with the spirit of law and it should resolve the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessing officer will that this time has been curtailed by way of an amendment with retrospective effect cause huge hardships to all the assessee. Hence, this view is not at all tenable and also against the fundamental rights of the assessee. (C.6) That as the show cause notice can be issued only as per the law in force during the period to which such demand relates, in the same way, refund can be claimed as per the law in force during the period to which such refund relates. In the case of appellant, the refund relates to December, 2017 and the refund as per the law in force at that time could be claimed within 2 years from the end of the financial year to which such refund relates i.e. upto 31st March, 2020. Hence, the appellant was well in time for claiming the refund as the original application and the follow up application both were filed on 20th January, 2020 and 25th January, 2020 respectively which were before 31st March, 2020 and well within the prescribed time limit. (C.7) In view of the above judgments, it is very much clear that the substantive right given by the law cannot be affected by any amendment made in the law. As the amendment in the relevant date had su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant in the same and there was no intention of not attaching the documents. (D.4) That the deficiency memo was issued by the Assessing officer on 23rd January, 2020 against which a rectified application was filed on 25th January, 2020. Because of technical glitches, the appellant could not attach the required document with the original refund application which resulted in deficiency memo. The appellant removed the deficiency on 25th January i.e. within a very short span of 2 days but the fresh application filed in response to the deficiency memo was considered time barred on the basis of wrong interpretation of Rule 90(3) of the CGST rules and Circular 125/44/2019. It is again submitted that there was no delay at all in filing of the refund application. The fresh refund application was only an extension of the original refund application or was only in continuation of the original refund application and it was required to be filed only because of the technical glitches due to which required documents could not be attached in first attempt. Since the original refund application was in time and fresh application was also in time as it was only a continuation of the original refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2019-GST, dated 18th November, 2019, nowadays, where the deficiency memo is issued by the AO and in compliance thereof, the appellant files a fresh application rectifying the deficiency as per Rule 90(3) of the CGST Rules, this rectified application is treated altogether a different application having no nexus with the original refund application. New ARN number is generated for the rectified application and it is processed as a separate application. Also, it is provided that such rectified application shall also be submitted within the same time that is allowed for original refund application i.e. 2 years from the relevant date. (E.3) In present ease, even if the time period for claiming refund is assumed to be as per the amended law i.e. 2 years from the due date of return to be furnished under Section 39 for the period in which such refund arises, the appellant had to file the refund application for the period of December, 2017 upto 20th January, 2020 and he filed the application on time. However, deficiency memo was issued on 23rd January, 2020 and a fresh application against it was filed on 25th January, 2020 which was considered altogether a new application having no nex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. v. Shri Shanti Mishra (1975) Union of India v. Uttam Steel Ltd. - 2015 (319) E.L.T. 598 (S.C.) M/s. Jindal Stainless Limited v. Union of India Ors., (2011) Dilip Kumar Ghosh v. Chairman - AIR 2005 SC 3485 Commissioner of Income Tax XIII v. Naresh Kumar, M/s. Talbros (P) Ltd. [2013 (9) TMI 275 - Delhi High Court] Govind Das and Others v. The Income Tax Officer - 1975 (12) TMI 144 - SUPREME COURT, In the matter of Tata Tea Ltd. v. CCE, Cochin [2003 (9) TMI 601 - CESTAT BANGALORE = 2004 (164) E.L.T. 49 (Tri. - Bang.)] Kusum Enterprises Pvt. Ltd., Sanko Gosei Technology India Pvt. Ltd. v. Union of India Ors. - 2019 (7) TMI 945 - Delhi High Court Adfert Technologies Pvt. Ltd. v. Union of India and Ors. - 2019 (11) TMI 282 - Punjab and Haryana High Court = 2020 (32) G.S.T.L. 726 (P H) Bhargava Motors v. Union of India Ors. - 2019 (5) TMI 899 - Delhi High Court = 2019 (26) G.S.T.L. 164 (Del.) M/s. Pitambra Books Pvt. Ltd. v. Union of India Others - 2020 (2) TMI 169 - Delhi High Court = 2020 (34) G.S.T.L. 196 (Del.) where it was held that : Jakap Metind Pvt. Ltd. v. Union of India and Others, 2019 (31) G.S.T.L. 422 (Guj.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evant provisions are reproduced as under :- As per Section 54 of the CGST Act, 2017 - Refund of tax. - (1) 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. (3) Subject to the provisions of sub-section (10), a registered person may claim refund of any unutilised input tax credit at the end of any tax period : Provided that no refund of unutilised input tax credit shall be allowed in cases other than - (i) zero rated supplies made without payment of tax; (ii) where the credit has accumulated on account of rate of tax on inputs being higher than the rate of tax on output supplies (other than nil rated or fully exempt supplies), except supplies of goods or services or both as may be notified by the Government on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in case where the tax 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 :] (as amended by CGST (Amendment) Act, 2018 w.e.f. 1-2-2019). Further as per sub-rule (3) of Rule 90 of the CGST Rules, 2017 - Acknowledgement. (3) Where any deficiencies are noticed, the proper officer shall communicate the deficiencies to the applicant in FORM GST RFD-03* through the common portal electronically, requiring him to file a fresh refund application after rectification of such deficiencies. Further as per Paras 9, 10, 11 12 of Circular No. 125/44/2019-GST, dated 18-11-2019 issued by the CBIC, New Delhi states as under :- 9. It may be noted that if the application for refund is complete in terms of sub-rule (2), (3) and (4) of rule 89 of the CGST Rules, an acknowledgement in FORM GST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... introduced w.e.f. 1-2-2019 vide the CGST (Amendment) Act, 2018 and there is no stipulation in the CGST (Amendment) Act, 2018 that the same shall apply retrospectively. However, Rules of interpretation provide that whenever any statute is newly added the same has got only prospective effect unless it is specifically provided in the amending statute or the amendment is by way of substitution of an existing provision mainly by way of clarification or removal of defects. Accordingly, I hold that the said provisions has got only prospective effect. Thus with effect from 1st February, 2019, the meaning of relevant date may be reckoned within 2 years from the due date of furnishing of return under Section 39 of the CGST Act, 2017 relating to the period in which such claim for refund arises. 8. In view of the foregoing discussion and legal provisions, I find that the amended provisions under sub-section (14) of Section 54 of the CGST Act, 2017 for relevant date was made effective from 1-2-2019, while the fresh refund application was filed by the appellant on 25-1-2020 which absolutely beyond the two years from the relevant date. Hence, in this context the appellant s contention is not a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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