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TMI Blog2021 (7) TMI 1166X X X X Extracts X X X X X X X X Extracts X X X X ..... e period of July, 2017 to March, 2018 under Section 54 of the CGST Act, 2017 on 15-5-2020. 2.2 On scrutiny of refund claim filed by the appellant, show cause notice vide reference No. 08AAFCC7740P1Z3 in Form RFD-08, dated 20-5-2020 was issued to the appellant that the refund claim was liable to be rejected on the following grounds that :- (1) As per Section 34(2) of the CGST Act, 2017 and Section 39(9) ibid, liability may be adjusted in return of subsequent month(s) or refund may be claimed where adjustment is not feasible. On examination of the refund claim, it appears that the assessee has failed to correct their GSTR-3B returns for the financial year 2017-18, before filing of GSTR-3B return for the month of September, 2018 (filed on 19th September, 2019) either by way of adjustment in return of subsequent month(s) or by way of refund. (2) Further, it also appears that assessee has failed to file the refund application before expiry or 2 years from the relevant date i.e. August, 2017 to February, 2018 (as reported by the assessee) under Section 54(1) of CGST Act, 2017. (3) Thus the Refund appears ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled to correct their GSTR-3B return for the month of September, 2018 either by way of adjustment in return of subsequent months or by way of refund. Further, it also appears that assessee has failed to file the refund application before expiry of 2 years from the relevant date i.e. August, 2017 to February, 2018 under Section 54(1) of CGST Act, 2017. Thus the refund appears inadmissible." - that the Appellant duly filed a reply in Form RFD-09 on 9-6-2020 against the above SCN and giving elaborate details of excess payment of tax. - that the Ld. Assistant Commissioner has erred in rejecting the Refund Clam on the grounds that the Refund Claim Application is barred by the period of limitation according to Section 54 of the CGST Act, 2017. For the purpose of this Section, "Relevant date" means : (a) in the case of goods exported out of India where a refund of tax paid is available in respect of goods themselves or, as the case may be, the inputs or input services used in such goods, - (i) &nb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e filed within the time period as specified above. - that the Appellant also contend that the relevant date for the period July, 2017 to March, 2018 should be taken from the date of filing the Annual return for the FY 2017-18 i.e. 5-12-2019 and time period for filing the Refund Application shall expire on 5-12-2021. - that the Appellant are contend in that the time period for filing the Refund Application shall be considered from the time of filing the annual return as that is the time when the mistakes have been noticed, discovered, reflected and rectified by the Appellant. - that the Ld. Assistant Commissioner has erred in not considering the principles of the decisions of the earlier enactments. - that there are certain matters on which GST provisions are either silent or does not provide any clarity. The ultimate recourse available to the assessee on such matters is either to look into its interpretation or draw inferences from the earlier enactments. - that one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove submission, he requested for early decision in the matter. 5. I have gone through the facts of the case and written submissions made by the appellant in their appeal memo as well as oral submission at the time of personal hearing and accordingly I proceed for deciding the appeal. 6. The issues to be decided in this case is whether the refund application filed by the appellant is time barred by the period of limitations in terms of Section 54 of the CGST Act, 2017. The relevant statutory provisions in the instant matter is as under :- As per Section 54 - (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. As per sub-section (14) of Section 54 of the CGST Act, 2017 - (1) ...... (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp; in any other case, the date of payment of tax. 7. On going through the case records, I find that the instant refund application was filed by the appellant on the ground of excess tax payment made by him and it was arised due to not reporting of credit note in GSTR-3B mistakenly and wrongly/erroneously paid the tax on cancelled invoices during the period 2017-18 by filing of GSTR-3B. In this context, I find that the other remedies are available in the Section 34(2) and Section 39(9) of CGST Act, 2017 but the appellant failed to opt the same and applied the instant refund application on 15-5-2020. The refund application has been rejected by the adjudicating authority by the impugned order on being time barred issue in terms of Section 54 of CGST Act, 2017. In this regard, appellant contended that Section 54 of the Act is silent regarding time for application of refund where the assessee paid excess payment by mistake therefore he placed reliance on the Limitation Act, 1963 with the supporting decisions of the various Tribunals and Courts. Further, he contended that the relevant date of the period July, 2017 to March, 2018 should be taken from the date of f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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