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TMI Blog2025 (2) TMI 501X X X X Extracts X X X X X X X X Extracts X X X X ..... ue a Writ of Mandamus or any other appropriate writ, order or direction directing Respondent No. 3 i.e. the Deputy Commissioner of CGST, to sanction and pay the Petitioner's refund claim for Rs. 15,90,288/- with interest @9% per annum; (B) That Your Lordships may be pleased to issue a Writ of Certiorari or any other appropriate writ, order or direction quashing and setting aside OIA No.AHM-002-APP-ADC-30-31/2023-24 dated 28.07.2023 (Annexure-"F"), with consequential relief of payment of refund of Rs. 15,90,288/- with interest @9% per annum for the period commencing from the date of refund application till the actual payment of the refund of Rs. 15,90,288/- to the Petitioner; (C) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to direct the 3rd Respondent herein to forthwith pay the Petitioner a refund of Rs. 15,90,288/- on such terms and conditions that may be deemed fit by this Hon'ble Court: (D) An ex-parte ad interim relief in terms of Para 17 (C) above may kindly be granted: (E) Any other further relief as may be deemed fit in the facts and circumstances of the case may also please be granted. 4. The brief facts of the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... barred, but allowed the second claim to the extent of Rs. 29,24,012/- and rejected the remaining claim of Rs. 1,99,174/- as time-barred. 5. The Petitioner -Company therefore filed two appeals before the Appellate Authority i.e., the Respondent No. 2 contending that the amount recovered as tax had to be returned to the assessee. On 28.07.2023, the Appellate Authority has rejected both the appeals and upheld the decision of the Deputy Commissioner in rejecting refund claims for sums of Rs. 13,91,114/- and Rs. 1,99,174/-. The Appellate Authority held that the claims were barred by limitation of two years provided under Section 54 of the CGST Act, and therefore, the rejection of the claims on the ground of limitation in lodging the refund claims was proper. 6. Thus, according to the petitioners, the State has collected a total sum of Rs. 45,14,300/- as tax and returned a sum of Rs. 29,24,012/- therefrom because there was no levy of tax on the Petitioner's transactions in question; but a sum of Rs. 15,90,288/- collected as tax is retained and the refund thereof is refused only on the ground of the same being time-barred. 7. Mr. Paresh Dave, learned advocate appearing with Mr. Par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the petitioners ought to have submitted the claim of refund within two years from the date of payment of the Tax, whereas both the claims filed by the petitioners have been filed beyond the period of two years and therefore, both the refund claims are time barred in the light of Section 54 of the Act, and under Notification No. 13/2022 dated 05.07.2022, the CBIC excluded the period commencing from 01.03.2020 to 28.02.2022 for the purpose of calculation of limitation. Even taking into account the effect of the aforesaid Notification, the partial rejection out of the total claim of Rs.31,23,186/- is rightly done by the authorities below. 9. DISCUSSION & FINDINGS:- The relevant provision of Circular No. 178/10/2022-GST dated 03.08.2022 is quoted hereinbelow :- "7.5 An employer carries out an elaborate selection process and incurs expenditure in recruiting an employee, invests in his training and makes him a part of the organization, privy to its processes and business secrets in the expectation that the recruited employee would work for the organization for a certain minimum period. Premature leaving of the employment results in disruption of work and an undesirable situation. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oard v. Kanoria Industrial Ltd. (supra), wherein it has been held thus: "9. In H.M.M. Ltd. v. Administrator, Bangalore City Corpn., 1997 (91) ELT. 27 (S.C.), it is held that a tax or money realised without authority of law is bad under Article 265 of the Constitution and that the money or tax so collected is refundable. In that case octroi was levied and collected in respect of goods on their mere physical entry into the city limits, which were not used or consumed or sold within the municipal limits. This Court, dealing with the refund in para 12 of the judgment, held thus: "We see no ground as to why amount should not be refunded. Realisation of tax or money without the authority of law is bad under Article 265 of the Constitution. Octroi cannot be levied or collected in respect of goods which are not used or consumed or sold within the municipal limits. So these amounts become collection without the authority of law. The respondent is a statutory authority in the present case. It has no right to retain the amount, so far and so much. These are refundable within the period of limitation. There is no question of limitation. There is no dispute as to the amount. There is no s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on that though the High Courts have power to pass any appropriate order in the exercise of the powers conferred under Article 226 of the Constitution, such a petition solely praying for the issue of a writ of mandamus directing the State to refund the money is not ordinarily maintainable for the simple reason that a claim for such a refund can always be made in a suit against the authority which had illegally collected the money as a tax". Again in AIR para 9, the Court held: "We, therefore, hold that normally petitions solely praying for the refund of money against the State by a writ of mandamus are not to be entertained. The aggrieved party has the right of going to the civil court for claiming the amount and it is open to the State to raise all possible defences to the claim, defences which cannot, in most cases, be appropriately raised and considered in the exercise of writ jurisdiction. This judgment cannot be read as laying down the law that no writ petition at all can be entertained where claim is made for only refund of money consequent upon declaration of law that levy and collection of tax/cess as unconstitutional or without the authority of law. It is one thing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y been made to the Customs authorities. Nowhere did Mafatlal Industries talk of a situation where the refund of a cess paid under the Cess Act, 1985 albeit erroneously, was required to be made under the Excise Act or the Customs Act and under no other enactment. Consequently, the observation in para 4 of the judgment of the Hon'ble Supreme Court in Anam Electrical Manufacturing Co. has also to be understood in the same manner. Para 4 of the said judgment it has been explained that the rules pertaining to refund would not apply where refund is sought of a 'duty levied and recovered under an unconstitutional provision. It was explained that the period of limitation in such cases would be in terms of the law laid down in Mafatlal Industries. It is obvious that when the Hon'ble Supreme Court talked of 'duty levied and recovered under an unconstitutional provision' the reference was not to a duty of customs or excise. Therefore, to rely upon either Mafatlal Industries or Anam Electrical Manufacturing Co. to deny the claim of the Appellants in this case is entirely misconceived." "16. There can be no manner of doubt that the customs authorities in the instant case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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