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TMI Blog2022 (1) TMI 696X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 3 4 5 1 APPL/JPR/ CGST/JP/ 153/XII/ 2020/ ZS0808200365697, dated 26-8-2020 Appellant has filed refund claim under Section 54(1) of the CGST Act, 2017 for the period February, 2018 in respect of GST amount wrongly paid on direction of department. Refund rejection amounting to Rs. 5,83,251/- 2 APPL/JPR/ CGST/JP/ 154/XII/ 2020/ ZQ0808200332186, dated 24-8-2020 Appellant has filed refund claim under Section 54(1) of the CGST Act, 2017 for the period February, 2018 in respect of wrongly paid on direction of department. Refund rejection amounting to Rs. 10,89,495 2. Brief facts of the case : 2.1 Brief facts of the case are that the appellant having GSTIN 08AAEFT4933H1Z1 has filed the applications for refund vide GST-RFD-01 with ARN No. AA0807200737253, dated 29th July, 2020, and AA080720073669T, dated 29th July, 2020, respectively, under Section 54(1) of the CGST Act, 2017 for the period and amount mentioned in Para-1 above in column Nos. 4 & 5. 2.4 Further, the adjudicating authority has issued Form GST RFD-08 vide reference No. ZN0808200097042 and ZU0808200097097, both dated 7-8-2020 with reason "Delay in Refund Application" and given a Remark : "The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red to pay/reverse the credit of CGST of Rs. 5,83,251.00 and Rs. 10,89,495.00 as held by the departmental Audit. Therefore, the reversal/payment of impugned amount by them cannot acquire the colour of legitimate levy of CGST as the tax can be levied and collected only under the authority of law as provided in Constitution of India. Since, the amount of Rs. 5,83,251.00 and Rs. 10,89,495.00 was not required to be deposited, therefore, the same cannot be termed tax (CGST) and hence, to be considered a 'deposit' with the Government. (A.2) The appellant further submits that since, the amount of Rs. 5,83,251.00 and Rs. 10,89,495.00 cannot be termed tax (CGST), therefore, the provisions for refund of CGST as prescribed under Section 54 of the CGST Act, 2017 do not apply to refund of said amount, which, essentially is in the nature of 'deposit'. That being so, the refund of impugned amount of Rs. 5,83,251.00 and Rs. 10,89,495.00 being deposit with the Government, does not attract the limitation clause as provided in Section 54 of the CGST Act, 2017 as the same applies only to refund of tax (GST). The appellant accordingly submits that the Ld. AC has erred in rejecting the refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 706 (Kar.) - (Para 10)] Joshi Technologies International v. UOI [2016 (339) E.L.T. 21 (Guj.) (Paras 12.1, 14.4)] Indo-Nippon Chemicals Co. Ltd. v. Union of India reported at 2005 (185) E.L.T. 19 (Guj.). In view of the cited judgment in the case of Indo-Nippon Chemicals, the appellant submits that the relevant date in the present case should be the date of discovery of mistake i.e. (17-9-2019, i.e. the date of completion of departmental audit) and not the date of reversal of credit (i.e. 1-2-2018). The refund claim filed on 29-7-2020 is accordingly within the specified time-limit of 2 years from the relevant date (i.e. 17-9-2019), hence, deserves to be allowed, setting aside the impugned OIO appealed against. 4. Personal hearing in both the appeals was held on 19-6-2021 through virtual mode as both the appeals are similar in nature therefore, both the appeals have been taken simultaneously. Shri Ajay Kumar Mishra, Authorized Representative, has appeared on behalf of the appellant. He explained the grounds of appeal in details and reiterated the written submission during personal hearing. In view of above submission, he requested for decision in the appellant favour. 5.&e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment thereof; (g) in the case of a person, other than the supplier, the date of receipt of goods or services or both by such person; and (h) in any other case, the date of payment of tax. Issue of delay in filing of appeal : As per Section 107(1) of the CGST Act, 2017 - Any person aggrieved by any decision or order passed under GST Act by an adjudicating authority may file appeal to Appellate Authority within three months from the date of communication of such decision or order. On going through the Appeal Memo, it has been observed that the said orders were communicated to the appellant on 26-8-2020 and 24-8-2020 and appeal filed in the instant matter to this office on 14-12-2020 which is delayed by 18 days and 20 days from the prescribed time limit as provided under Section 107(1) of the CGST Act. However, considering the unavoidable circumstances, I am inclined to condone the delay in accordance with Section 107(4) of the CGST Act, 2017 and accordingly I proceeded to decide the case on merits. (a) Whether amount for which refund was filed, is in the nature of Pre-deposit or Tax? (b) &nbs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his own determination of credit. Therefore, question of wrongly or mistakenly reversed of the credit does not arise. Further, there is no doubt that the 'Input Tax Credit' is nothing but it is tax only as per the provisions of the GST Act. Eligible Input Tax Credit lying in the Credit Ledger are utilized for payment of tax liabilities only. In the instant case transitional credit were availed as valid/eligible credit and some part of the credit were reversed by the appellant as a tax only. Therefore, the appellant's contention that the reversal of credit is in nature of pre-deposit, is not acceptable at this stage and I find it is an afterthought of the appellant to avail the benefit of refund. (b) In respect of issue involved at Point No. (b) above - The appellant contended that the reversal of credit cannot be termed as tax, therefore, the provisions for limitation clause as prescribed under Section 54 of CGST Act, will not apply in the instant case. As discussed at Point No. (a) that the reversal of ITC is a tax only it may not be termed as deposit/pre-deposit. These said amount were admittedly reversed by the appellant themself by treating the same as tax only. Further, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the reversal of credit was done by the appellant himself, therefore, no error or mistake was made but it was determined by the appellant only and he never objected the reversal of credit till the departmental Audit conducted. Further, the appellant has not produced any evidence which shows that the departmental Audit has specifically allowed the said reversal credit rather the appellant has assumed by his own and filed the refund for the same. Therefore, I do not agree with the contention of the appellant that it was the case of mutual mistake accordingly, I do not find applicability of the cited judgments in the instant case. Further, I find that the appellant has filed the refund application under the category of 'Any Other' accordingly, the clause ('h') of sub-section (14)(2) of Section 54 of CGST Act, will be applicable for determination of relevant date in the instant case. On going through the Statement of Facts submitted by the appellant, I find that the date of reversal of ITC were on 1-2-2018 and 2-2-2018 whereas, the said refund claims was filed on 29-7-2020 which is explicitly/clearly beyond the expiry of two years from the relevant date. The appellant also mention ..... X X X X Extracts X X X X X X X X Extracts X X X X
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