TMI Blog2021 (7) TMI 1115X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty under Section 73(1) of CGST Act, 2017 read with Section 54 of CGST Act, 2017. This allegation levelled in the notice to Show Cause (SCN) seamlessly culminated into the impugned Order, as the appellant neither replied to the notice nor appeared for the hearing, holding that the refund was erroneously sanctioned and therefore amount refunded is liable for recovery with applicable interest and penalty. Since the claim has been admittedly filed for the period May, 2018, the relevant period in this case has to be considered as May, 2018. In this regard it is found that the respondent on the logic that since the proceeds in foreign currency for the exports made in the month of May, 2018 has been received only during January, 2019, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ef facts of the case 2. The appellants are engaged in providing services to its overseas customers. The appellants had filed a refund application for the month of May, 2018 and received provisional refund to the tune of ₹ 3,06,733/-. The respondent had issued a notice to Show Cause seeking to hold the refund sanctioned as erroneous and consequently demand the same along with applicable interest and penalty. The notice to Show Cause alleged that the period for which the refund claimed is May, 2018, whereas, the relevant payment was received only on 29-1-2019 which did not fall in the range of the relevant period. The respondent further observed that the appellant is not eligible to claim refund. The respondent failed to appreciate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receipt of foreign exchange. The appellant further reiterated and the provisions of Rule 89 and produced copy of bank statement and CA certificate in support of their claim. They have also drawn attention to Para 12 of Circular No. 37/11/2018-GST F.No. 349/47/2017 Personal hearing 5. The appellants were heard through video conference on 21-12-2020. Shri R. Subramanian, Chartered Accountant represented the appellant and reiterated the written submissions. He has drawn attention to Para 12 of Circular No. 37/11/2018-GST in F.No. 349/47/2017 to drive home the point that realization of convertible foreign exchange is one of the conditions of service. Though there was receipt in foreign currency (in May, 2018), the respondent simpl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices) * Net ITC/Adjusted Total Turnover. I find herein that the dispute is confined only to the one ingredient of the formula Viz., turnover of zero rated supply of services . The turnover of zero rated supply of services has been defined as : the value of zero rated supply of services made without payment of Tax under bond or letter of undertaking, calculated in the following manner, namely :- Zero rated supply of services is the aggregate of the payments received during the relevant period for zero-rated supply of services and zero-rated supply of services where supply has been completed for which payment had been received in advance in any period prior to the relevant period reduced by advances received for zero- rated suppl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t supply of services made only in that period. In other words, it is the prescription of the respondent that the payments for the export of services made in a particular period should have been received within that period itself However, it appears that the provisions of the said rule do not leave scope for such extrapolation. Simply put, what has to be considered is only the payments, if any, is received during the relevant period for zero-rated supply of services In the case of the appellant, the invoice for export of services for the claim period of May, 2018 was raised only on 31-5-2018. In such circumstances, it would be impossible for the appellant to receive the export proceeds within the same period. It is therefore, not envisaged i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess. It is an established Law that an adverse Order seeking to impose a demand shall not be passed without considering the contra stand of the aggrieved. The appellant also has canvassed substantial submissions to reinforce their case against rejection of refund that has not been presented before the respondent. I therefore consider it to be legal and proper to quash the impugned Order and direct the respondent to pass an Order afresh as per Law keeping in mind the findings recorded in Para 8 above. Accordingly, I proceed to pass the following Order : ORDER 10. I quash the impugned Order bearing No. ZZ3303200087836, dated 5-3-2020 and direct the respondent to pass afresh a speaking Order on merits after scrupulously adhering to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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