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2023-TIOL-687-HC-JHARKHAND-GST
Steel Authority of India Ltd Vs State of Jharkhand
GST - Petitioner requires various raw materials including 'coal' which is subjected to levy of compensation cess - In terms of Section 11 of the GST (Compensation to States) Act, 2017, compensation cess payable on Inputs is permitted to be adjusted only against tax liability of compensation cess, and, unutilized compensation cess is not adjustable against the liability towards CGST, SGST and IGST - However, in case of export, excess ITC available towards compensation cess at the hands of the assessee can be claimed as refund in terms of Section 16 read with Section 54 of the CGST Act. Petitioner applied for refund of unutilized ITC for the period 2017-18 - Petitioner checked status of its Refund Application online and in the online portal, it was clearly reflecting that refund of the Petitioner has been sanctioned for an amount of Rs. 2,90,86,294/- and payment advice in RFD- 05 was yet to be issued - After a lapse of about two and half years, despite repeated follow-ups by the Petitioner, Respondent No.3, for the first time, vide its Letter No. 155 dated 9th April, 2022, communicated to the Petitioner that the erstwhile Deputy Commissioner of State Tax, Bokaro Circle, Bokaro had passed an order on 22.10.2019 in Form RFD 01-B, wherein its application for refund has been rejected and the amount towards accumulated ITC has been credited in Petitioner's electronic credit ledger on 22.10.2019 - Petitioner was supplied certified copy of Form RFD 01-B, wherein the order rejecting refund was described as 'Order No. 91 dated 18.10.2019', but Petitioner was not supplied the said order by Respondent-authorities - Petitioner, again filed representations before Respondent-authorities for processing its claim for refund and to issue consequential order of refund including interest, as there was no order in the records rejecting refund application of the Petitioner - Petitioner was communicated a letter dated 31 May 2022 informing that since ITC has been re-credited to the Electronic Credit ledger, their request for processing of refund application cannot be adhered to, therefore, the present petition.
Held: R espondents have not produced before this Court Order no. 91 dated 18.10.2019 allegedly passed by Respondent No. 3 by which refund application of the Petitioner has been rejected - Secondly, even if any order was passed rejecting application of the Petitioner, said order was passed in utter violation of the principles of natural justice and without complying with Rule 92(3) of the CGST Rules, which provides for grant of opportunity of hearing - T hirdly, if Petitioner is directed to apply for refund application afresh, the Petitioner would lose the benefit of statutory interest - It is an admitted fact that refund for the subsequent periods has already been sanctioned in favour of the Petitioner - Whenever money has been received by a party which ex aequo et bono ought to be refunded, the right to interest follows, as a matter of course - Bench is, therefore, of the opinion that alleged order bearing Order no. 91 dated 18.10.2019, by which refund application of the Petitioner has been purportedly rejected by the Respondent, is non-est in the eye of law, being a non-existing order and the claim of refund of the Petitioner is required to be processed in terms of its original application - Petitioner is further entitled to interest in terms of the provisions of Section 56 of the CGST Act after expiry of 60 days from the date of receipt of the application for refund i.e., 04.03.2019 @ 6% per annum till the date of payment of refundable amount - Respondents are directed to process the claim of refund along with interest of the Petitioner within a period of three weeks - Petition allowed: High Court [para 18, 19, 20]
- Petition allowed: JHARKHAND HIGH COURT
2023-TIOL-686-HC-DEL-GST
Geeta Enterprises Vs UoI
GST - Petition is filed against impugned o-in-o whereby the petitioner's claim for refund of ITC for the month of April 2018 has been rejected as time barred - Petitioner also impugns the o-in-a whereby their appeal was rejected - Facts are that the application for refund filed on 23.02.2021 in respect of ITC for April 2018 was rejected alleging that the same was beyond the period of two years from the relevant date as stipulated in s.54 of the Act, 2017. Held: Petitioner has adverted to notification 13/2022-CT dated 05.07.2022 whereby the period of limitation for filing an application for refund u/ss 54, 55 has been relaxed - Inasmuch as in terms of the said notification, the period commencing from 01.03.2020 to 28.02.2022 is required to be excluded - Respondent counsel fairly states that the petitioner's case is covered by the said notification - Impugned orders are, therefore, set aside and the petitioner's application is restored to the Assistant Commissioner, GST for deciding the same on merits within a period of six weeks - Petition is allowed: High Court [para 3, 5]
- Petition allowed: DELHI HIGH COURT
2023-TIOL-494-CESTAT-KOL
Savourites Hospitality Pvt Ltd Vs CCGST & CE
ST - Assessee is a service provider of both taxable and exempted services - In course of their business activities, they have taken Cenvat Credit for all input services going into both taxable and exempt services - Adjudicating Authority after following due process confirmed the demand of Rs.15,86,088/- in respect of Cenvat Credit to be reversed for input services used as common inputs - He imposed penalty of Rs.15,86,088/- and Rs.1,32,132/- under Section 78 of Finance Act, 1994 - On appeal, Commissioner (A) rejected the same - Assessee has not filed any option letter opting to reverse proportionate Cenvat on common inputs used - During the period under consideration, Tribunals have been taking a liberal view that on account of mistake of non-filing of option letter which is only a procedural condition, assessee should not be made to suffer by making huge payments in terms of 5%/6% of value of exempted services - It is seen that even prior to Rule 6 (3AA) coming into effect from 01/4/2016, they have been taking the view that mere non filing of option letter should not be used to deprive the assesssee from reversing proportionate Cenvat Credit - The very fact that Rule 6 (3AA) has been brought into effect from 1/04/2016 wherein Adjudicating Authority is empowered to allow the assesse to reverse Cenvat on proportionate basis on being pointed out, shows the legislative intent to allow assessee to pay proportionate Cenvat Credit as the first option - Demand confirmed for Rs.15,86,088/- in terms of Rule 6(3)(i), i.e. on 5%/6% of value of exempted goods is not sustainable and same is set aside - Assessee has correctly reversed Rs.5,91,987/- on proportionate reversal basis in terms of Rule 6(3A) - The interest paid by them is not disputed by Revenue - These two amounts are allowed to be appropriated by Revenue - The balance demand of Rs.9,94,301/- along with interest thereon and entire penalty of Rs.15,86,088/- is set aside - In respect of Rs.1,32,132/- paid along with interest, as same has been paid immediately on being pointed out, penalty of Rs.1,32,132/- is set aside: CESTAT
- Appeal disposed of: KOLKATA CESTAT
2023-TIOL-493-CESTAT-DEL
Asstt. CCGST & CE Vs Grasim Industries Ltd
CX - The issue arises for consideration is as to whether the amount of subsidy received by assessee from State Government under Madhya Pradesh Industrial Investment Promotion Assistance Scheme, 2004 is includible in assessable value of goods cleared during period in dispute i.e. from 2012-2013 to 2015-2016, in terms of section 4(3)(d) of CEA, 1944 - Commissioner (A) observed that appellant have initially paid entire Sales Tax to State Government while amount of Rs. 13,56,37,000/- for period 2013-14 to 2015-16 has been subsequently refunded to them as subsidy - The subsidy does not reduce sales tax that is required to be paid by assessee as entire amount of sales tax collected by them from the customer is paid - The subsidy amount, therefore, cannot be included in transaction value for the purpose of levy of central excise duty under section 4 of Excise Act - The order of Commissioner (A) does not suffer from any illegality so as to call for interference: CESTAT
- Appeal dismissed: DELHI CESTAT |
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