QUESTION
 

IN THE CASE OF FACT :- two problem in same dealer PROBLEM NO.1 F.Y. 2017-2018 Month OF FEB--2018 Dealer Sold MATERIAL AGAINST SEZ UNIT WITH PAYMENT OF TAX Igst Tax @ 18% 745272.00 BUT DURING THE FILE GSTR1 AND GSTR3B FIGURE MENTIONED IN THE EXPORT HEAD WITH PAYMENT OF TAX INSTEAD OF B2B SEZ WITH PAYMENT OF TAX. 1. I was filed refund application agianst `ANY OTHER` Head instead of refund application `SEZ UNIT WIH PAYMENT OF TX` DUE To refund application was not filed in proper head because during the filed return proper figure not shown in gstr1 and gstr3b in proper head . 2. I METIONED SEZ FIGURE IN THIS HEAD in GSTR1 coloum 6A EXPORT INVOICE WITH PAYMENT OF TAX 3. I METIONED SEZ FIGURE IN THIS HEAD in GSTR3B3.1, (a) Outward Taxable supllies (other than zero rated, nil rated and exempted) REFUND APPLICATION DATE :-11/01/2020 AND Deficiency Memo Date :- 07/02/2020 State Assit. Commisioner was reject our refund Application `ANY OTHER` HEAD in below reason . 1. Reason is :- Refund is Claimed in Any other head instead of Supplies made to SEZ with payment of tax. Because the Dealer has sold the Goods in the SEZ Unit but not mentioned in the GSTR 3B During the file return and Annual return GSTR 9., PROBLEM NO. 2 Same as above Second problem in same dealer but refund reject reason is changed are as under REFUND APPLICATION DATE :-11/01/2020 AND Deficiency Memo Date :- 07/02/2020 (Month of September - 2017) (RS.1354204/- refund amount) 1. Reason is :- REFUND APPLICATION FILED AFTER TWO YEARS OF RELEVANT PERIOD MY QUESTION IS :- 1. CAN I FILED APPEAL IN THE FIRST APPELATE AUTHORITY ? 2. WHICH GST SECTION CAN HELPS TO US FOR FILE APPEAL 3. WHAT IS PROPER GROUND OF APEALS OF ABOVE BOTH CASE KIDNLY REPLY TO US IMMEDIATLY LOT OF THANKS TO LAW CRUX TEAM.. HAPPY NEW YEARS 

ANSWER 

Facts of the case: 

Problem 1: Dealer Sold Material against SEZ Unit with payment of tax but while filing GSTR1 AND GSTR 3B figures mentioned as Export with payment of tax instaed of B2B SEZ with payment of tax. Similarly refund application was filed under head `ANY OTHER` instead of `SEZ UNIT WIH PAYMENT OF TAX` Refund application was rejected by Assit. Commissioner on the ground that refund is Claimed in Any other head instead of Supplies made to SEZ with payment of tax.

Problem 2: Refund application filed on 11/02/2020 for the month of September 2017 was rejected on the ground that refund application was filed after two years of relevant date hence time barred.

Law Applicable: 

SECTION 54 OF CGST ACT

1) 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 and manner as may be prescribed:
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Explanation: (2) 'relevant date' means'
(a) in the case of goods exported out of India where a refund of tax paid is available in respect of goods themselves or, as the case may be, the inputs or input services used in such goods,''
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h) in any other case, the date of payment of tax.

Interpretation: 

Problem 1

Refund can't be rejected on the technical ground or for clerical lapses. It is also clarified vide Circular No  37/11/18 GST that refunds may not be withheld due to minor procedural lapses or non-substantive errors or omission.

Similar decision was given by High Court in case of ITC LTD. Versus DY. CHIEF CONTROLLER OF IMPORTS & EXPORTS [1995(03)LCX003]  and By Delhi Tribunal in case of KANSAL KNITWEARS Versus  COMMISSIONER OF C. EX., CHANDIGARH [2000(09)LCX113]. The same are enclosed for your reference. 

Problem  2

In case of Export to SEZ on payment of tax, you are required to file application in FORM RFD-01A for refund of IGST paid. 

As per section 54 application for claiming refund of any tax can be made before the expiry of two years from relevant date.

Thus application of refund filed on 11.01.2020  for September 2017 i.e. after two years is time barred.

Yes, you can file an Appeal to Appellate Authority u/s 107 of CGST Act, but it may be possible that the application may be rejected by the Appellate Authority on the ground of refund application being time barred. 

However the same may be condoned by Higher Appellate Authority after considering the facts and amount of refund.

Conclusion: Refund can't be rejected on the ground of non compliance with the procedural requirements. (Reply dt.25.11.2020)