9911796707
TMI Blog2023 (12) TMI 738X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent No. 2; and/or c) Issue a writ of certiorari or any other appropriate writ or order or direction in the nature thereof, quashing the impugned deficiency memo bearing C. No. GST EAST/MCIE/R-161/Refund/Sopphire Intrex Ltd/272/2022 dated 22.08.2022 (enclosed as ANNEXURE-2 to the writ petition) issued by the Respondent No. 2; and/or d) Issue a writ of certiorari or any other appropriate writ or order or direction in the nature thereof, quashing the impugned letter bearing C. No. II(3)GST East/MCIE/Range 161/Refund/Sapphire Intrex Ltd./271/2022 dated 17.10.2022 (enclosed as ANNEXURE-14 to the writ petition) issued by the Respondent No. 5; and/or e) Issue a writ of mandamus or any other appropriate writ or order or direction in the nature thereof, directing the Respondent No. 2 to process refund claims bearing ARN AA070822010019L (for an amount of Rs. 36,35,360/-) and AA070822010080W (for an amount of Rs. 1,93,64,642/) both dated 04.08.2022 filed by the Petitioner and grant refund expeditiously in a time bound manner; and/or f) Issue such further orders and other reliefs as the nature and circumstances of the case may require." 2. The petitioner is a public company e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot exceed two lakh rupees, certification under Rule 89(2)(m) otherwise-not uploaded March 2019-2020 ARN AA0707220334768 Dated 13.07.2022 C.No.GST/EAST/MCIE/R-161/Refund/Sopphire Intrex Ltd/271/2022 28.07.2022 b. Documents in support of the claim are not sufficient. 8. The petitioner, in response to the first set of deficiency memos filed two separate rectified refund claims dated 04.08.2022 amounting to Rs.36,35,360/-(period February 2019-2020) and Rs.1,93,64,642/- (period March 2019-2020), enclosing along with DRC-03 dated 20.10.2021, under-protest payment letter dated 21.10.2021, SCN dated 23.06.2022, and the copy of certificates issued by a CA certifying that the amount paid the petitioner has not been claimed/adjusted against the regular liability of GST, and also not availed as input tax credit. 9. Respondent no. 2 thereafter issued second set of deficiency memos dated 22.08.2022 (in FORM GST RFD-03) under Rule 90(3) of the CGST Rules allegedly pointing out the same deficiencies as were pointed out in the first set of deficiency memos dated 28.07.2022, and further advised the petitioner to once again file fresh refund claims after the rectification of the said d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said payment was voluntary and the respondents are liable to refund the said amount, which was coercively recovered during the search proceedings along with interest. [Ref: Vallabh Textiles v. Senior Intelligence Officer and Ors. :2022 SCC OnLine Del 4508] 16. Third, the learned counsel submitted that the impugned second deficiency memos both dated 22.08.2022 issued by the respondents are in contravention of the paragraph 11 of the Circular dated 18.11.2019 as the petitioner had rectified the deficiencies mentioned in the first deficiency memos both dated 28.07.2022 by attaching the relevant documents. The learned counsel submitted that the said circular issued by the CBIC stipulates that no second deficiency memo is to be issued in respect of refund application filed afresh, after rectification of deficiencies, unless the earlier deficiencies remain unrectified, or any other substantive deficiency is noted subsequently, and the same is binding on the respondents. [Ref: Commissioner of Central Excise, Bolpur v. Ratan Melting & Wire Industries : (2008) 13 SCC 1 ; RDB Textiles v. Commissioner of Central Excise and Services Tax, Kolkata- IV Commissionerate : (2018) 14 SCC 42 ; Union ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated from the date of passing of an adjudication order. 20. Lastly, the learned counsel submitted that the letter dated 17.10.2022, which in effect rejects the refund claims filed by the petitioner, without giving the petitioner any show cause notice and/or any opportunity of being heard, is illegal. It is issued in violation of the principles of natural justice and contrary to the binding Circular dated 18.11.2019. He stated that the adjudication of the SCN dated 23.06.2022 is immaterial and not a pre-requisite for processing of the refund claims filed by the petitioner under the residuary category as the refund is not arising as a result of any order or proceedings. He submitted that GST laws do not mandate that in case a show cause notice is issued to an applicant, his refund claims cannot be processed unless the said notice is adjudicated. Furthermore, it was also submitted that petitioner is not required to furnish an order (to evidence adjudication of the show cause notice) in support of refund claims filed under the residuary category as stipulated under the binding Circular dated 18.11.2019. 21. The learned counsel for the respondents, on the other hand, submits that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... according to the petitioner, it was coerced to make the deposit of tax through the cash ledger vide Debit Entry No. DC0710210203804 dated 20.10.2021 at 8:41pm while the search and inspection proceedings were continuing at the material time. 28. It is an admitted case that while the payment was made by the petitioner, it had not admitted the liability to pay the amount. It is also not in dispute that there is no adjudication of the liability and the Show Cause Notice demanding the recovery of GST and the appropriation of the amount of Rs.2,30,00,000/- deposited by the petitioner was issued on 23.06.2022, that is, much after the said deposit. The amount was deposited during the course of investigation. The learned counsel appearing for the respondents does not deny that an assessee cannot be forced to pay any amount during the course of investigation. If any amount is collected without any authority of law, the same amounts to depriving the person of its property and infringes its rights under Article 300A of the Constitution of India. 29. In the facts of the present case, we accept that the deposit was made by the petitioner under duress and compelling circumstances. The search o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the payment made by the petitioner in Form GST DRC-04 as required under the CGST Rules. In Vallabh Textiles v. Senior Intelligence Officer and Ors. (supra), a Coordinate Bench had held that failure to follow the prescribed procedure would also lead to the conclusion that the deposit made by the taxpayer was not voluntary." 33. This Court also relied upon the judgment passed by the Gujarat High Court in M/s Bhumi Associate v. Union of India: Manu/GJ/0174/2022, decided on 16.02.2021 and held that the directions issued by the Gujarat High Court had not been followed. The Central Board of Indirect Taxes and Customs ('CBIC'), has also issued directions emphasizing that tax must be collected only after following the due process of law. The relevant extract of the instructions dated 25.05.2022, are set out below: "3. It is further observed that recovery of taxes not paid or short paid, can be made under the provisions of Section 79 of CGST Act, 2017 only after following due legal process of issuance of notice and subsequent confirmation of demand by issuance of adjudication order. No recovery can be made unless the amount becomes payable in pursuance of an order passed by the adju ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
