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TMI Blog2023 (8) TMI 1211X X X X Extracts X X X X X X X X Extracts X X X X ..... 'the CGST Act'). The petitioner assails rejection of its claim on the ground that its first application seeking refund was filed within the prescribed period. Its subsequent applications were filed online to clarify the deficiencies and queries raised by the concerned officer; therefore, it cannot be considered as a fresh application for the purposes of determining whether the claim was filed within the period of limitation. 2. In terms of Paragraph 10 of Circular No. 125/44/2019-GST dated 18.11.2019 (hereafter 'the impugned Circular') once a deficiency memo is issued, the application for refund would not be processed and the taxpayer is required to file a fresh application. Further in terms of paragraph 12 of the impugned Circular, the fresh application is also required to be filed within the stipulated period of two years from the relevant date. Thus, notwithstanding that the taxpayer's first application was within the period of limitation, in terms of the impugned Circular, the taxpayer's claim for refund is liable to be rejected as barred by limitation, if the fresh application, pursuant to a deficiency memo, is filed after the period of limitation as specified under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 09.2020 (hereafter 'deficiency memo no. 3') raising a fresh set of queries and requiring documents to be uploaded. These were termed as deficiencies. Pursuant to the said deficiency memo no. 3, the petitioner re-filed its refund application for a fourth time on 02.11.2020. 10. Respondent no. 2 (Additional Commissioner) thereafter issued a show cause notice dated 02.03.2021 (hereafter 'the impugned SCN') calling upon the petitioner to show cause as to why its refund application should not be rejected on the ground that it was filed after the prescribed period of two years. The petitioner filed a reply dated 12.03.2021 to the said impugned SCN stating that as per the statutory provisions its claim for refund was filed within the two-year period as prescribed, and thus was liable to be processed. Respondent no. 2 thereafter passed the impugned order, relying upon paragraph 12 of the impugned Circular. Reasons and conclusion 11. The provisions for refund are contained in Chapter 11 of the CGST Act. Sub-section (1) of Section 54 of the CGST Act provides that an application for refund shall be made before the expiry of two years from the relevant date. Sub-section (4) to Section 54 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund of tax in pursuance of section 77; (e) the tax and interest, if any, or any other amount paid by the applicant, if he had not passed on the incidence of such tax and interest to any other person; or (f) the tax or interest borne by such other class of applicants as the Government may, on the recommendations of the Council, by notification, specify. (8A) The Government may disburse the refund of the State tax in such manner as may be prescribed." 12. The period of limitation for making an application is prescribed under Section 54(1) of the CGST Act. In terms of Sub-section (8) read with Sub-section (7) of Section 54 of the CGST Act, if the proper officer is satisfied that the amount claimed is refundable, he is required to deposit the same in a fund referred to in Section 57 of the CGST Act or be paid to the applicant, if the condition of Sub-section (8) of Section 54 of the CGST Act are satisfied. 13. In terms of Section 54(1) of the CGST Act, an application for refund is required to be made within a period of two years from the relevant date, which is defined in Explanation (2) to Section 54 of the CGST Act. 14. The application is required to be made in such form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nomic Zone unit or a Special Economic Zone developer; (e) a statement containing the number and date of invoices, the evidence regarding the endorsement specified in the second proviso to sub-rule (1) and the details of payment, along with the proof thereof, made by the recipient to the supplier for authorised operations as defined under the Special Economic Zone Act, 2005, in a case where the refund is on account of supply of services made to a Special Economic Zone unit or a Special Economic Zone developer; (f) a declaration to the effect that the Special Economic Zone unit or the Special Economic Zone developer has not availed the input tax credit of the tax paid by the supplier of goods or services or both, in a case where the refund is on account of supply of goods or services made to a Special Economic Zone unit or a Special Economic Zone developer; (g) a statement containing the number and date of invoices along with such other evidence as may be notified in this behalf, in a case where the refund is on account of deemed exports; (h) a statement containing the number and the date of the invoices received and issued during a tax period in a case where the claim pertai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rule 90 of the CGST Rules provides that where deficiencies are noted, the same are required to be communicated to the applicant in Form GST RFD-03 through common portal. In such cases, the applicant would be required to file a fresh application after rectification of deficiencies. Sub-rules (1), (2) and (3) of Rule 90 of the CGST Rules are set out below: "90. Acknowledgement.- (1) Where the application relates to a claim for refund from the electronic cash ledger, an acknowledgement in FORM GST RFD-02 shall be made available to the applicant through the common portal electronically, clearly indicating the date of filing of the claim for refund and the time period specified in sub-section (7) of section 54 shall be counted from such date of filing. (2) The application for refund, other than claim for refund from electronic cash ledger, shall be forwarded to the proper officer who shall, within a period of fifteen days of filing of the said application, scrutinize the application for its completeness and where the application is found to be complete in terms of sub-rule (2), (3) and (4)of rule 89, an acknowledgement in FORM GST RFD-02 shall be made available to the applicant th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the deficiencies is relevant and is reproduced below: "S.No. Description 1. It has been noticed that in most of the cases value/amount as indicated in the FIRCs against the corresponding export invoices as reflected in statement 2 (as uploaded at the module along with refund application) does not tally. Therefore, tax period is required to reconcile the differences noticed, export invoices wise vis - a- vis FIRCS. 2. The copies of export invoices not uploaded in order to ascertain and co-relate the correct particulars viz nature of services supplied and value thereof. 3. The taxpayer has not uploaded the GST-RFD01A for the tax period of October 2017-18 (tax period) for which refund is being claimed, in the absence of same calculation of refund amount claimed could not be verified. 4. The tax period has indicated 54 nos. of record of export invoices in the GSTR-01 whereas in the statement 2 particulars of all the 54 export invoices have not been mentioned. 5. In GSTR-3B for the tax period/ month of October-2017-18, in table 3.1(B) total turnover of outward taxable supplies (zero rated) shown to be of nil value whereas in the table 6A GSTR-01 total taxable value of expo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund claimed is same in both RFD 01 A and acknowledgement in the same and has been debited in electronic credit ledger on the date of claim. 13. The taxpayer has not filed information about any demand which had not been stayed and is pending. 14. The taxpayer has not filed an undertaking to the effect that the required information in GSTR-3B, GSTR-1, GSTR RFD-01A has been furnished correctly. 15. The taxpayer has not filed trading account for the relevant period i.e. for the month of Oct 2017. 16. The taxpayer has not filed proof of receipt and delivery of goods/ services. 17. The taxpayer has not filed any other document that verify transition or entry in any books of account. 18. The taxpayer has not filed Copy of purchase orders issued by the foreign buyers. 19. The taxpayer has not filed marked copy of bank statement to indicate making of payment against purchases/ supplies received and receipt of payment against exports. 20. The taxpayer has not filed a declaration that no refund has already been claimed against relevant invoices. 21. The tax person has not filed declaration regarding not availing of duty drawback in respect of goods/ services exported. 22. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est. If it is accompanied by the "documentary evidences" as mentioned in Rule 89(2) of the Rules, it cannot be ignored for the purposes of limitation. The limitation would necessarily stop on filing the said application. This is not to say that the information disclosed may not warrant further clarification, however, that by itself cannot lead to the conclusion that the application is required to be treated as non est for the purposes of Section 54 of the CGST Act. It is erroneous to assume that the application, which is accompanied by the documents as specified under Rule 89(2) of the Rules, is required to be treated as complete only after the taxpayer furnishes the clarification of further documents as may be required by the proper officer and that too from the date such clarification is issued." 27. Mr Ramachandran, learned counsel appearing for the Revenue rightly submits that the present case is covered by the decision in the case of Bharat Sanchar Nigam Limited v. Union of India & Ors. (supra) and thus, it is not necessary to examine the broader challenge to the vires of Rule 90(3) of the CGST Rules or paragraph 12 of the impugned Circular. 28. The learned counsel appearing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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