TMI Blog2023 (4) TMI 1182X X X X Extracts X X X X X X X X Extracts X X X X ..... orts for the given month was less than the purchases made in that month. Accordingly, for the month of August 2017, the inadmissible amount was pegged at Rs. 59,67,280/-; likewise for the month of September 2017, the inadmissible amount was quantified at Rs. 1,70,20,253/-. The petitioner is right in its contention that interest should trigger in accordance with the main part of Section 56 of the CGST Act, i.e., from 18.04.2018, and that interest should run, both on CGST and DGST, up until the date when the amount was remitted to the petitioner. The dates when the remittance was made have been captured. The respondents/revenue will remit the interest to the petitioner in accordance with what is stated hereinabove, within two weeks from receipt of a copy of the judgment - Petition disposed off. - HON'BLE MR. JUSTICE RAJIV SHAKDHER AND HON'BLE MS. JUSTICE TARA VITASTA GANJU For the Petitioner Through: Mr Puneet Agarwal, Mr Yuvraj Singh, Ms Tanuja Rawat and Mr Chetan Kumar Shukla, Advs. For the Respondents Through: Ms Kunjala Bhardwaj, Adv. for Mr Kirtiman Singh, CGSC for R-1. Mr Harpreet Singh, Sr. Standing Counsel with Ms Suhani Mathur, Adv. for R-3 4. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.4 Concededly, the petitioner had filed refund applications in view of the fact that these were zero rated supplies against the export made on 06.01.2017. 4. The respondents/revenue had raised a deficiency memo on 13.02.2018, which was cured on 16.02.2018. Admittedly, on 07.05.2018, a notice was issued calling upon the petitioner to show cause as to why refund amounting to Rs. 59,67,280/- lakhs ought not to be disallowed, qua the exports made in August 2017. The ostensible ground given, was that the exports made were less than the corresponding purchases made in the said month. 4.1 A notice of even date, i.e., 07.05.2018, on almost identical lines, which set forth the amount of disallowance qua refund vis-a-vis the exports made in September 2017, was issued as well. The proposed amount of refund which was disallowed for the month of September 2017 was Rs. 1,70,20,253/-. 4.2 The petitioner filed two separate response of even date, i.e., 10.05.2018, to the said show cause notices. Inter alia, the petitioner asserted that it had exported the entire quantity of goods, i.e., jewellery, which had been domestically purchased. 4.3 The explanation given by the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r or by clubbing successive calendar months/quarters. The calendar month(s)/quarter(s) for which refund claim has been filed, however, cannot spread across different financial years [Emphasis is ours] 6. As indicated right in the beginning, it is in this backdrop, that the petitioner had approached this Court by way of a writ action. Notice, as observed at the outset, was issued on 21.12.2018. On the returnable date i.e., 11.01.2019, a coordinate Bench of this court gave liberty to the petitioner to file its application for refund manually, having regard to the fact that the period for moving application for refund i.e., two years, had not expired. 6.1 The court, specifically, directed the respondents/revenue, i.e., the concerned authority, to examine the application, which as indicated above, had to be filed manually, in accordance with the law. 7. It is not in dispute that the respondents/revenue, in a sense, sidestepped the specific directions issued by the court on 11.01.2019 giving the petitioner liberty to file the application manually and thus, went on to reject the applications, which were filed manually on 28.01.2019. The respondents/revenue s order to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s/revenue, contest the position taken by Mr Agrawal. 14.1 It is their contention that the proviso appended to Section 56 of the CGST Act deals with both substantial and procedural orders. In other words, according to Messrs Satyakam and Farasat, although the order granting refund, i.e., order dated 24.05.2019, was procedural in nature, the proviso will get attracted. 14.2 Secondly, it is submitted by Messrs Satyakam and Farasat that in a taxing statute, the court would have to go by textual interpretation and therefore, no leeway should be given for shifting the date from which interest would get triggered. In this particular case, according to them, interest was triggered post the order passed by this court in the writ action on 28.03.2019. 14.3 Thirdly, the proviso is agnostic to the reason based on which interest is triggered. This submission is tied in with the second submission made by Messrs Satyakam and Farasat. 14.4 Lastly, it is submitted that it is because of this reason that a higher rate of interest is granted when the interest is triggered due to orders issued by the statutory authorities, which includes the court. 14.5 In this context, our attention i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Appellate Authority, Appellate Tribunal or any court against an order of the proper officer under sub-section (5) of section 54, the order passed by the Appellate Authority, Appellate Tribunal or by the court shall be deemed to be an order passed under the said sub-section (5). 17.2 A careful perusal of the main part of Section 56 would show that if any tax is ordered to be refunded under Section 54(5) of the CGST Act visa-vis an applicant, and if the same is not refunded within sixty days from the date of receipt of an application under Section 54(1), interest at such rate not exceeding 6%, as has been specified in the notification issued by the Government on the recommendation of the Council, is payable immediately after the expiry of sixty (60) days from the date of the receipt of the said application, which runs, as per the said provision, till the date of refund of such tax. 18. Section 54 generally deals with refund on tax. Sub-section (1) of Section 54 clarifies that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the export had been made in Sept. 2017. On the date of filing of refund claim, entire stock had been exported. Since the GSTN Server did not allow to claim refund either in the month of Sept. 2017 or in the respective months, the Company had no option but to claim the entire refund in the month of Aug. 2017; in spite of the fact that the Company is aware that refund should be claimed in the respective months. It is reiterated that on the date of filing of refund claim, entire stock had been exported If the Hon'ble Authority is of the view that under the present circumstances, in spite of Govt. Server Problem, the Company is not eligible to claim entire refund in the month of Aug, 2017 and refund should be claimed only in the respective months, and hence refund amount to be rejected proportionately; the Company prayed that it may be permitted to file the refund application for the proportionate amount in the month of Sept. 2017 manually. [Reply concerning August 2017] The Company purchased goods amounting for Rs 4557296529/- in the month of Sept. 2017, which were exported during the month of Sept and Oct. 2017. Due to GSTN server problem, entire refund ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is appended, even while it embraces the field that is covered by the main provision [ See Commissioner of Income Tax, Mysore, Travancore-Cochin and Coorg, Bangalore and Anr. v. The Indo Mercantile Bank Ltd and Anr., 1959 Supp (2) SCR 256, paragraphs 10 and 11]. 24.2 In other words, the proviso can neither be dismembered from the main provision, nor can it be used to nullify or set at naught the real object of the main enactment. [See S. Sundaram Pillai and Ors. v. V.R. Pattabiraman and Ors., AIR 1985 SCC 582, paragraph 27]. 24.3 The proviso envisages a situation where, while processing an application for refund, the respondents/revenue are required to deal with a lis and the refund is a consequence of that lis. Where there is no lis with regard to either the quantum or the value, then in our view, the proviso will have no application. The wordings of the proviso in that context are revealing. The proviso begins with the following sentence Provided that where any claim of refund arises from an order passed by an adjudicating authority or Appellate Authority or Appellate Tribunal or court which has attained finality... 25. In this case, the 28.03.2019 order was p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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