Section 38 in Daman and Diu Value Added Tax Regulation, 2005
38. Refunds.
(1)Subject to the other provisions of this section and the rules made thereunder, the Commissioner shall refund to a person the amount of tax, penalty and interest, if any, paid by such person in excess of the amount assessed or deemed to have been assessed and due from him.(2)Before making any refund, the Commissioner shall first apply such excess referred to in sub-section (1) towards the recovery of any other amount due under this Regulation, or thereafter from the dues under the Central Sales Tax Act, 1956 (74 of 1956) if such dues relate to sale of goods from the Daman and Diu under that Act.(3)Subject to the provisions of sub-section (4), any amount remaining at the end of the financial year after the application of the excess amount referred to in sub-section (2) shall, at the option of the dealer, either -(a)be refunded to the person within one year after the date on which the claim was made for the refund; or(b)be carried forward to the next tax period as a tax credit in that period.(4)Where the Commissioner has issued a notice to the person under section 58 informing him that an audit, investigation or inquiry into his business affairs shall be undertaken, the excess amount referred to in sub-section (2) shall be carried forward to the next tax period as a tax credit in that period.(5)The Commissioner may, as a condition of the payment of a refund under this section, demand security from the person pursuant to the powers conferred in section 25.(6)Notwithstanding anything contained in this section, where -(a)a registered dealer has sold goods to a person who is not registered as a dealer under this Regulation;(b)the price charged for the goods includes an amount of tax payable under this Regulation; and(c)the dealer claims refund of this amount or to apply this amount under clause (b) of sub-section (3),no amount shall be refunded to the dealer or may be applied by the dealer under clause (b) of sub-section (3) unless the Commissioner is satisfied that the dealer has refunded the amount to the purchaser.(7)Where -(a)a registered dealer (hereafter referred to as seller) has sold goods to another registered dealer (hereafter referred to as the buyer); and(b)the price charged for the goods expressly includes an amount of tax payable under this Regulation,the amount of tax may be refunded to the seller or may be applied by the seller under clause (b) of sub-section (3) and in that case the Commissioner may reassess the buyer to disallow him the amount of the corresponding tax credit claimed by such buyer, whether or not the seller refunds the amount to the buyer.(8)Where a registered dealer sells goods and the price charged for the goods expressly indicate inclusion of an amount of tax payable under this Regulation, the amount of the tax may be refunded to the seller or may be applied by the seller under clause (b) of sub-section (3) without the seller being required to refund an amount of the tax to the purchaser.(9)Notwithstanding anything contained in this section, if a registered dealer has filed any return as required under this Regulation and the return shows any amount of the tax as refundable to the dealer on account of sales in course of export out of the territory of India, then, the dealer may apply in the manner and form prescribed, to the Commissioner for grant of provisional refund pending audit and investigation to establish the correctness of the claim and consequent assessment, if any, subject to the provisions of sub-section (10).(10)Subject to the provisions of sub-section (3), the Commissioner may require the dealer to furnish a bank guarantee or other security, as may be prescribed, for an amount equal to the amount of refund of tax and on receipt of such guarantee or other security, the Commissioner shall grant the dealer a provisional refund which may be determined as refundable within ninety days of application of claim of such refund.(11)The Commissioner may direct the assessment or reassessment of such dealer in respect of the year containing the period covered by the said return as expeditiously as possible and adjust the grant of provisional refund against tax due, if any, as a result of such assessment.(12)If, on assessment or reassessment, the provisional refund granted under sub-section (2) is found to be in excess, then the excess shall be recovered as if it is tax due from the dealer under this Regulation.(13)In a case the excess amount of tax has been refunded under sub-section (3), the interest shall be payable on such excess amount at the rate of two per cent. per month from the date of grant of provisional refund till the date of assessment or reassessment, as the case may be.
