TMI Blog2021 (12) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... in the implementation of the CGST Act shall observe and follow such orders, instructions or directions. There can hardly be any dispute that the said Superintendent was under an obligation to follow the terms of the impugned circular - the said Superintendent failed to appreciate that the impugned circular could not have been ignored on the face of rule 97A, which is equally binding on him in the discharge of his duties. Since rule 97A contains a non-obstante clause, it is intended to override rules 89 to 97 of the CGST Rules forming part of Chapter X. The plain and simple construction of rule 97A is that despite rule 89 providing for electronic filing of applications for refund on the common portal, in respect of any process or procedur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmon portal and the same has to be processed electronically, with effect from 26th September 2019. Such an instruction is contained in letter bearing F. No. CGST/RGD/Div-II/Tech-I/Misc/21-22, New Panvel, dated 27th July 2021 issued by the Superintendent, Tech-, Division-II, CGST C. Ex., Raigad (hereafter the said Superintendent , for short). Aggrieved thereby, this writ petition dated 4th September 2021 has been presented before this Court seeking, inter alia, the following relief: - (a) that this Hon ble Court be pleased to issue a Writ of Certiorari or a writ in the nature of Certiorari or any other writ, order or direction calling for the records pertaining to the Petitioner s case and after going through the facts of the Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med in terms of prayer clauses (a) and (b). 3. A short reply affidavit has been filed by the respondents contesting the petitioner s claim and bringing on the record the impugned circular. 4. According to Mr. Mishra, learned advocate for the respondents, the said Superintendent who issued the letter dated 27th July 2021 is bound by the terms of the impugned circular and, therefore, was disabled from accepting the application for refund filed by the petitioner manually. He has referred to a decision of the Gujarat High Court reported in 2020 (32) G.S.T.L. 321 (Guj.) (F. S. Enterprise vs. State of Gujarat), which we propose to deal with hereafter. Resting on such authority, it is submitted that no illegality has been committed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appreciate that the impugned circular could not have been ignored on the face of rule 97A, which is equally binding on him in the discharge of his duties. We say so for the reason that follows. 7. Chapter X of the CGST Rules is titled Refund and begins with rule 89. Rule 89 provides for the procedure to be observed while applying for refund of tax, interest, penalty, fees or any other amount. In terms of sub-rule (1) of rule 89, such an application could be made by the person eligible therefor electronically in FORM GST RFD-01 through the common portal, either directly or through a Facilitation Centre notified by the Commissioner. We need not refer to the other sub-rules of rule 89 and the provisos appended to some of such sub-rules a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eference to electronic filing of an application on the common portal shall, in respect of that process or procedure, include manual filing of the said application. If indeed the argument of Mr. Mishra that no application in any form other than online can be received and processed is accepted, rule 97A would be a dead letter and rendered redundant. Rule 97A cannot be construed in a manner so as to defeat the purpose of legislation. We, therefore, conclude that the impugned circular would certainly be applicable to all applications filed electronically on the common portal, but the impugned circular cannot affect or control the statutory rule, i.e., rule 97A of the CGST Rules or derogate from it. 10. The proposition of law laid down in F. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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