TMI Blog2021 (8) TMI 843X X X X Extracts X X X X X X X X Extracts X X X X ..... nd was filed against ITC accumulated on account of export of goods without payment of tax, so relevant date under such cases shall be counted from the date of EGM of Shipping Bills, in plain it can be stated that the date on which goods were left Indian frontier either by sea or air. On perusal of Shipping Bills associated with said refund, it can be stated that Shipping Bill No. 8689481/02.11.2018 (EGM dated 06.11.2018) of sum ₹ 26,06,527/- only hit by the clause of limitation and is time barred. For the purpose of reckoning relevant date in the instant case is the date on which such goods pass the frontier which suitably can be derived as date of filing EGM in terms of the Customs procedure. As per customs procedure, EGM means (export goods manifest) a document which is filed by the carrier of the export consignment before the departure of the carrier (shipments, airlines etc.,) and it is considered as proof of shipment. Accordingly, the refund amount of ₹ 26,05,527/- as claimed in respect of Invoice No. EXP/MDV/18-19/01 dated 26.10.2018, Shipping Bill No. 8689481 dated 02.11.2018, EGM No.22147 date of EGM 06.11.2018 is hit by the clause of limitation as it is tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 54(1) of the CGST Act, 2017. 2.3 Further, after consideration reply of the appellant, the adjudicating authority has rejected the refund claim vide RFD-06 dated 12.01.2021 on the ground that Refund claim filed by the appellant is hit by limitation and found to be Time Barred as ARN date is 19.11.2020 which is more than 02 years of prescribed time period and thus hit by clause of limitation. Hence, it appeared that refund to the extent of ₹ 2,85,084/- is time barred. 3. Being aggrieved with the impugned order dated 12.01.2021, the appellant has filed the appeal on 29.01.2021 on the following grounds which are summarized as under:- ISSUE OF DEFICIENCY MEMO AND IMPUGNED NOTICE UNLAWFULL AND WITHOUT REASON The Appellant submitted application online through GSTN Portal in the available Form RFD-01 on 02.11.2020 along with all necessary documents for Refund as defined in Circular No. 725/44/2079 - GST dated 18.11.2019. The GSTN Portal after submission of RFD-01A generated Refund ARN Receipt No.AA081120002738M. The said application for refund was submitted by the GSTN Portal to the Jurisdictional Officer i.e. GST RANGE-XXXVIII of CGST. Copy of the ackno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification issued under section 55,claiming refund of any tax, interest, penalty, fees or any other amount paid by him, other than refund of integrated tax paid on goods exported out of India, may file an application electronically in FORM GST RFD-01 through the common portal. either directly or through a Facilitation Centre notified by the Commissioner: 89(3) Where the application relates to refund of input tax credit, the electronic credit ledger shall be debited by the applicant by an amount equal to the refund so claimed. Rule 90(2) provides for Acknowledgement of the application which is as under- 90(2) The application for refund other than claim for refund from electronic cash ledger, shall be forwarded to the proper officer who shall, within a period of fifteen days of filing of the said application, scrutinize the application for its completeness and where the application is found to be complete in terms of sub-rule (2), (3) and (4)of rule 89, an acknowledgement in FORM RFD-02 shall be made available to the applicant through the common portal electronically, clearly indicating the date of filing of the claim for refund and the time period specified in sub-section (7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under the law. Therefore the issue of the first deficiency memo as well as the impugned notice both are unlawful and the impugned order should be set aside. REFUND IS NOT BARRED BY LIMITATION 18. Without prejudice to above submission, the appellant wish to submit that the impugned Order made a serious error in rejection of the refund on the ground of the limitation for various reasons. Firstly the adjudicating authority has misconstrued the provision of the statute. Refund of the Unutilized ITC is governed by the Section 54 read with Chapter X of the CGST/ SGST Rule 2017. It is pertinent here to consider the statutory provision relevant for claim of refund. The relevant Extract of those Statutory provisions are reproduced hereunder for the sake of reference. 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: ************************ Explanation.-For the purposes of this section.- (1) refund includes refund of tax paid on zero-rated supplies of goods or servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment considered the date of Export Invoice for calculating the relevant date for the purpose of refund application. Here it is important to mention here that the Relevant date for the purpose of section 54 as defined in the explanation (2)(a)(ii) referred herein above is the date when the goods passes the frontier of India. It need to be understand that the there is difference of time between Date of Invoice, date of shipping bill and Let Export Order and the actual date when goods leave the frontier. Attention of your honour is drawn toward the brief summary showing date of Invoices, Shipping bill and Let Export Order. S No Invoice Number Shipping Bill Number Shipping Bill Date Let Export Order (LEO) Date 1 EXP/MDV/18-19/01 8689481 02/11/2018 05/11/2018 2 EXP/NP/18-19/10 9012427 20/11/2018 28/11/2018 3 EXP/NP/18-19/11 9155477 27/11/2018 28/11/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported by post, the date of despatch of goods by the Post Office concerned to a place outside India; Refund - Limitation - Relevant date - Service Tax paid on Port services used for export of goods - Relevant date for computing one year limitation period to be the date when goods loaded for exportation under Section 51 of Customs Act. 1962 - Section 11E3 of Central Excise Act, 1944 made applicable to Service Tax vide Section 83 of Finance Act, 1994 and Notification No. 41/2007-S.T. From -above -discussion a-nd submission it is crystal clear that in no case the date of Invoice or date of shipping bill can be considered as the relevant date. Thus the rejection of refund claims on the basis of the date of invoice instead of date when goods left India for export is unlawful and therefore against the provisions of law. 32. It is therefore humbly requested to allow the refund considering the relevant date as the date of LET EXPORT ORDER (LEO). C. DATE OF FIRST APPLICATION IS TO BE CONSIDERED FOR LIMITATION Without prejudice to above, The impugned Order has considered the date of second application of refund filed on 19.11.2020 as the date of application of refund. The S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L.T. 100 (Tri. - Kolkata) C.C. EX., DELHI-I Versus ARYA EXPORTS AND INDUSTRIES 2005 (192) E.L.T. 89 (Del.) A.P.Pager Mills Ltd 1991 (54) E.L.T 293 COMMISSIONER OF C. EX., DELHI Versus ARYA EXPORTS AND INDUSTRIES 2005 (192) E.L.T. 89 (Del.) 4. Personal hearing in virtual mode through video conference was held on 08.07.2021 wherein Shri Manmohan Mahipal, Authorized Representative of the appellant has attended the personal hearing. During the personal hearing he reiterated the grounds of appeal and explained the same in details. During personal hearing it was asked to Authorized Representative of the appellant to provide the details of shipping bills, invoices and date of filing of EGM in respect of rejected refund claim. In compliance of the above direction, Authorized Representative of the appellant submitted the summary of the invoice, shipping bill and EGM details along with copy of shipping bills and screen shots of ICEGATE portal reflecting therein the EGM number and date thereof. Accordingly, I proceed to examine the contention of the appellant as well as averments put forth by the department in the light of the relevant provisions of GST Act and Rules made there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also directed to file fresh refund application after uploading all the documents. Further, I find the said deficiency memo was issued within 15 days of filing of refund application as prescribed under sub rule (2) of Rule 90 of CGST Rules, 2017. In view of above factual position, I undoubtedly find that the original refund application of the appellant was not filed with all relevant documents as prescribed under Section 54 (4) of CGST Act, 2017 read with Rule 89 (2) of CGST Rules, 2017. Further, I do not find any reason to rely on screen shot of RFD-01 as it was only a draft stage application, it could be possible that while submitting the application, appellant might have not uploaded certain mandatory documents on the common portal. In view of said circumstances, I find that the proper officer has issued the said deficiency memo in consonance to the provisions of laws and rules made thereunder. 7 In respect of issue mentioned at Para 4 (ii) above- The appellant submitted that the department has considered the date of Export Invoice for calculating the relevant date for the purpose of refund application whereas, in the instant case of exported goods the relevant date would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 In the line of above provisions, further Rule 89(2) of CGST Rules, 2017 prescribes the documents which should be accompanied with refund application/RFD-01. Since, the claimant filed fresh application on 19.11.2020 with prescribed documents. Therefore, the actual date of refund filed was taken 19.11.2020 while processing refund application. Accordingly, refund claim against the shipping bill on or before 19.11.2018 found inadmissible. Para 18 to 32:- The claimant has contended that the refund was not time barred and the sanctioning authority failed to understand the provisions of Refund laid down in the Section 54 of the CGST Act, 2017. However, on going through the provisions of Section 54 of the CGST Act, 2017 no weightage appears in the plea of claimant the refund pertaining to 02.11.2018 to 19.11.2018 was hit by limitation clause, as the refund being filed after 2 years, which was more than 2 years of the relevant date, and the same was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I am in agreement with the view of the revenue that the date of filing of fresh refund application in the instant case was correctly reckoned as 19.11.2020 as the refund claim was filed afresh, after rectification of deficiency issued in Deficiency Memo. Hence, I do not agree with the appellant contention that the initial date of filing of refund application should be taken for the purpose of calculating the period of two years from the relevant date. Further, I find that relevant date for the purpose of calculating the refund claim would be arrived as per provisions of Section 54(14) Explanation 2 (a) (ii) of CGST Act, 2017 as under: Section 54(14) Explanation (2) 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) if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India; or (ii) if the goods are exported by land, the date on which such goods pass the frontier; or ..... 9 I find that for the purpose of reckoning relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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