TMI Blog2022 (5) TMI 860X X X X Extracts X X X X X X X X Extracts X X X X ..... paid by him other than the refund of integrated tax paid on goods exported out of India, may file an application electronically in the form GST RFD 01 through the common portal - it seems that the respondent No.4 has no idea about Rule 97A of the Rules which starts with the non-obstante clause. Rule 97A clarifies that notwithstanding anything contained in Chapter x of the Rules any reference to electronic filing of an application would include manual filing of the said application. The Deputy State Tax Commissioner, Circle-2, Ahmedabad are directed to treat the manual application dated 01.09.2020 as an application for refund. The respondents are further directed to permit the writ applicant to furnish it s stance to any objections, before the same is relied upon by the respondent authority, by providing sufficient opportunity to produce supporting documents and also to provide opportunity of hearing to the writ applicant - petition disposed off. - R/SPECIAL CIVIL APPLICATION NO. 14158 OF 2021 - - - Dated:- 13-1-2022 - HONOURABLE MR. JUSTICE J.B.PARDIWALA AND HONOURABLE MS. JUSTICE NISHA M. THAKORE MR BHARAT RAICHANDANI FOR MR ADITYA R PARIKH FOR THE PETITIONER PRI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clinical research in relation to the drugs namely Doxoruvbicin Hydrochloride Limposome Injection (for short DHLI ) manufactured by the writ applicant. The DHIL drug is used for treatment of ovarian cancer. It is not in dispute that LTRL has provided the services of clinical research or testing services to the writ applicant. Accordingly, the LTRL has charged the GST @ 18% on the invoice value. 2.4 It is a case of the writ applicant that the services provided by the LTRL to it qualifies as Export of Services the terms of the provisions of Section 2(6) of the Integrated Goods and Services Tax Act, 2017 (for short The IGST Act, 2017 ). In such circumstances, the LTRL wrongly levied and collected the IGST on the above said supply of services. 2.5 On enquiry with the LTRL, the writ applicant was informed that the IGST levied and collected has been deposited with the Government Treasury / Exchequer. The LTRL further confirmed that neither they have claimed / filed any refund application nor received the refund from the Government of the disputed amount. It is in the aforesaid set of circumstances, that the writ applicant has filed a claim for refund of Rs.1,36,04,449/- (USD 1, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the non-obstante clause and the said Rules clarifies that any reference to electronic filing of an application would include manual filing also of the said application. Mr. Raichandani, the learned counsel in support of his aforesaid submissions, placed reliance on decision of the High Court of Bombay clarifying the position of law as regards the manual filing of the claim for refund. The order has been passed by the High Court of Bombay in the case of Laxmi Organic Industries Ltd. Vs. Union of India Ors., Writ Petition No.7861 of 2021 decided on 30.11.2021. In such circumstances referred to above, Mr. Raichandani, the learned counsel prays it has merits in the writ application and the same may be allowed and the respondents be directed to process the manual application for the refund. 5. On the other hand, this application has been vehemently opposed by Mr. Utkarsh Sharma, the learned AGP appearing for the State respondent and Mr. Priyank Lodha, the learned senior standing counsel appearing for the respondent No.1 Union of India. Mr. Sharma, the learned AGP first invited our attention to Section 54 of the Act, 2017. Section 54 is in Chapter xi. Chapter xi is with resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecord, the only question that falls for our consideration is whether the respondent No.4 is justified in rejecting the claim for the refund of tax on the ground that such claim has been put forward manually and not by way of online. 9. In the writ application, the writ applicant has raised various grounds wherein it is categorically stated that the respondent authority has straight way rejected application on technical ground and has failed to assigned reasons. At the outset, we notice that the impugned order is a non speaking order. Further, the respondent authority without giving any opportunity of hearing has straight way passed the impugned order on highly technical ground. We find that the respondent authority acted dehors the basic principles of natural justice. Hence, on the sole ground of violation of principles of natural justice, the writ petition is required to be allowed. 10. At this stage, we notice that by impugned order 02.12.2020, at Annexure-A, the Deputy State Tax Commissioner, Circle-2, Ahmedabad has solely rejected the application of writ applicant company on the ground that instead of online application seeking refund, the writ applicant has submitted man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice when the supplier of service is located in India; the recipient of service is located outside India; the place of supply of service is outside India; payment for such service has been received by the supplier of service in convertible foreign exchange; and the supplier of service and the recipient of service are not merely establishments of a distinct person in accordance with Explanation 1 in section 8 'Location of the recipient of services' has been defined in sub- section (14) o f section 2. Since this definition is also relevant, the same is quoted hereunder:- 2(14) 'location of the recipient of services' means,- (a) where a supply is received at a place of business for which the registration has been obtained, the location of such place of business; (b) where a supply is received at a place other than the place of business for which registration has been obtained (a fixed establishment elsewhere), the location of such fixed establishment; (c) where a supply is received at more than one establishment, whether the place of business or fixed establishment, the location of the establishment most directly concerned with the receipt of the sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cipient of services barring the exceptions carved out in sub-sections (3) to (13). In view of aforesaid statutory provisions, in this case we are of the prima facie view that the writ applicant, being recipient of service is located outside India. 10. Now adverting back to the main contention and submissions canvassed on either side, as regards online or physical application, we must first look into few relevant provisions of the Act. Section 2(84)(h) which reads thus: Section 2(84)(h) any body corporate incorporated by or under the laws of a country outside India. Section 54 (1) reads thus: Section 54: Refund of tax (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. Rule 89(1) of the Rules reads thus: Rule 89: Application for refund of tax, interest, penalty, fees or any other amount- (1) Any person, except the person covered under notification issued under Section 55, claiming refund of any tax, interest, penalty, fees or any other amount paid by him, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alf of the respondents that claim, if any for refund of any tax has to be by way of an application electronically in the form of GST RFD 01 through the common portal. However, it seems that the respondent No.4 has no idea about Rule 97A of the Rules which starts with the non-obstante clause. Rule 97A clarifies that notwithstanding anything contained in Chapter x of the Rules any reference to electronic filing of an application would include manual filing of the said application. 14. The Bombay High Court in the case of Laxmi Organic Industries Ltd. (Supra) has explained the true purport of Rule 97A of the Rules referred to above in following words, we quote the relevant observations in para, 6,7,8,9,10 and 11. 6. The origin of the impugned circular can be traced to section 168 of the Central Goods and Services Tax Act, 2017 (hereafter the CGST Act , for short), which empowers the J.V. Salunke, PS 2-WP.7861.2021 Central Board of Indirect Taxes and Customs (hereafter the Board , for short) to issue such orders, instructions or directions to the central tax officers as it may deem fit and thereupon all such officers and all other persons employed in the implementation of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 procedure prescribed in Chapter X any reference 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 J.V.Salunke,PS 2-WP.7861.2021 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. S. Enterprise (supra) that officers and all other persons employed in the i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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