TMI Blog2023 (2) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... D THAT:- The appellate authority has stated that the appellants are entitled to maintain the claim for refund. However, the second issue, which was suo motu framed by the appellate authority has been decided against the appellants. Firstly, the appellate authority has ignored the fundamental legal principles while deciding the appellants appeal. The appeal is against an order of rejection for the refund claim only on the ground that the appellants are not the persons, who had remitted the tax. In the said appeal, the appellants cannot be put in a disadvantageous position and cannot be worst off in their own appeal. Jurisdiction for the appellate authority to frame an issue suo moto - HELD THAT:- Assuming the statute provides for a cro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Judgment of the Court was delivered by T.S. SIVAGNANAM, J.) 1. This intra-Court appeal filed by the writ petitioners is directed against the order dated 20th December, 2022 passed by the learned Single Bench in W.P.A. No.1366 of 2022 by which the writ petition filed challenging an order passed by the appellate authority under the provisions of the CGST Act, dated 31st March, 2021 was dismissed. 2. On perusal of the order passed by the learned Single Bench, we find that the learned Single Bench has quoted paragraph 7 of the order passed by the appellate authority and has held that it is not inclined to interfere with the order considering the reasons recorded. We find that there is no independent finding recorded by the learned wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontended as to how as a service recipient, they are entitled to maintain an application for refund. In support of their contention, several decisions have been relied upon passed by the tribunals as well as by the various High Courts in this country. Thus, the appellants contended that the person, who has borne the incidence of tax can file a refund claimed in accordance with the provisions of section 54 of the CGST Act and in the case on hand, the appellants are the persons, who had ultimately borne the incidence of tax and therefore, eligible to claim the refund under section 54 of the CGST Act. 6. The appellate authority took up the case for consideration. From paragraph 5 of the order passed by the appellate authority, the discussion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion for filing a cross appeal by the revenue in a statutory appeal filed before the appellate authority under section 107 of the CGST Act. Thus, the second issue has to be necessarily set aside. 8. For the above reasons, the appeal is allowed. The order passed in the writ petition is set aside and the writ petition is allowed and that portion of the order passed by the appellate authority on the second issue is quashed. 9. Mr. K.K. Maity, learned senior standing counsel appearing for the respondents submitted that the appellate authority is entitled to go into the other issues in terms of section 107(2) of the CGST Act. 10. If the power under the said provision had to be invoked, then the appellants should have been put on notice. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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