Delhi High Court
Alex Tour And Travel Private Limited vs Assistant Commissioner, Cgst, ... on 8 May, 2023
Author: Vibhu Bakhru
Bench: Vibhu Bakhru
Neutral Citation Number is 2023:DHC:3213-DB
$~48
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 08th May, 2023
+ W.P.(C) 5722/2023
ALEX TOUR AND TRAVEL
PRIVATE LIMITED ..... Petitioner
Through: Mr. Karan Sachdev &
Ms. Masooma Rizvi,
Advs.
versus
ASSISTANT COMMISSIONER,
CGST, DIVISION-JANAKPURI ..... Respondent
Through: Mr. Aditya Singla, Sr.SC,
CBIC
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
HON'BLE MR. JUSTICE AMIT MAHAJAN
VIBHU BAKHRU, J. (Oral)
CM APPL. 22428/2023 (for exemption)
1. Exemptions allowed, subject to all just exceptions.
2. The application stands disposed of.
W.P.(C) 5722/2023
3. The petitioner has filed the present appeal, inter alia, praying as under:
"a) Issue a writ of mandamus or any other appropriate writ, order or direction in the nature thereof, directing the Respondent to implement the Order-in-Appeal No. 120-
123/2022-23 dated 28.07.2022, 114-115/2022-23 dated 28.07.2022 and 262/2021-22 dated 08.02.2022 passed by the Ld. Additional Commissioner, CGST Appeals-II, Delhi and expeditiously grant refund of Rs. 2,62,01,727/- to the Petitioner along with applicable interest;
b) Pass such further orders and other reliefs as the nature and circumstances of the case may require."
Signature Not Verified Digitally Signed W.P.(C) 5722/2023 Page 1 of 6 By:HARMINDER KAUR Signing Date:10.05.2023 17:31:58Neutral Citation Number is 2023:DHC:3213-DB
4. The controversy between the parties is regarding the refund of Input Tax Credit availed on inputs / input services which the petitioner claims to have used for export of service.
5. Undisputedly, the export of services is treated as a zero- rated supply and the petitioner is entitled for refund of the Input Tax Credit under Section 16(3)(a) of the Integrated Goods and Service Tax Act, 2017 (hereafter 'the IGST Act').
6. The petitioner filed refund applications, all dated 13.04.2021, claiming refund of unutilised Input Tax Credit, amounting to ₹46,38,276/- for the financial year 2018-19. Thereafter, on 14.04.2021, the petitioner filed an application seeking refund of the unutilised Input Tax Credit, amounting to ₹2,15,63,451/- for the period 2019-20. A tabular statement indicating the period for which refund was sought and the amount claimed, is set out below:
Sl. No. Period Amount of refund
claimed (INR)
2018-19
1. Apr-June 14,89,720/-
2. July-Sept 3,82,149/-
3. Oct-Dec 9,32,211/-
4. Jan-Mar 18,34,196/-
Sub-total 46,38,276/-
2019-20
5. Apr-June 72,35,435/-
6. July-Sep 80,95,822/-
7. Oct-Mar 62,32,194/-
Sub-total 2,15,63,451/-
TOTAL 2,62,01,727/-
7. The petitioners' claims for refund were rejected, inter alia, Signature Not Verified Digitally Signed W.P.(C) 5722/2023 Page 2 of 6 By:HARMINDER KAUR Signing Date:10.05.2023 17:31:58 Neutral Citation Number is 2023:DHC:3213-DB on the ground that the services provided by the petitioner were intermediary services and did not qualify for export of services. The respondent also raised an issue regarding non-furnishing of Foreign Inward Remittance Certificate (hereafter 'FIRC').
8. According to the petitioner, it was not feasible to co-relate invoices with separate FIRCs and a consolidated FIRC would be sufficient to claim the refund for the unutilised Input Tax Credit.
9. The petitioner filed an appeal against the orders dated 14.06.2021 (7 in no.) passed by the adjudicating authority under Section 54(5) of the Central Goods and Service Tax Act, 2017 (hereafter 'the CGST Act').
10. The appellate authority allowed the said appeals preferred against the orders dated 14.06.2021 by three separate orders; Order-in-Appeal No. 262/2021-22 dated 08.02.2022 for the period October, 2019 to March, 2020; Order-in-Appeal No. 114- 115/2022-23 dated 28.07.2022 for the period April, 2019 to September, 2019 and Order-in-Appeal No. 120-123/2022-23 dated 28.07.2022 for the period 2018-19.
11. It is also relevant to note that the appellate authority also accepted the petitioner's contention that in case of voluminous transactions of export of services to customers located outside India, transaction-wise FIRC is not feasible. The relevant observations made by the appellate authority in this regard are set out below:
"As regards discrepancy related to FIRC observed in the impugned order I find force in the contention of appellant in their case of voluminous transaction of export of services to customers located outside India transaction wise FIRC is not feasible nor it is intended by law. I hold that FIRC issued from bank in any format is conclusive evidence of the fact that appellant has received the foreign currency and issuance of consolidated FIRC by the Banker can't be the ground of Signature Not Verified Digitally Signed W.P.(C) 5722/2023 Page 3 of 6 By:HARMINDER KAUR Signing Date:10.05.2023 17:31:58 Neutral Citation Number is 2023:DHC:3213-DB rejection of refund claim to which appellant is otherwise eligible.
Thus I am of considerate view services rendered by Appellant qualify as an export of service in accordance with Section 2(6) of the IGST Act. Hence, rejection of subject four refund claims by the adjudicating authority in the impugned orders are without appreciating the facts of the matters and are not maintainable in law and liable to be set aside. I find that in accordance with the contentions made by the Appellant and the relevant statutes of the said Act, the four appeals filed by the appellant holds ground and merits acceptance."
12. It is relevant to note that similar observations were made in each of the Orders-in-Appeal, whereby the petitioner's appeals were allowed.
13. The petitioner again filed Form GST RFD-01 on 19.02.2022, 23.08.2022 and 10.11.2022 for grant of refund along with interest. Notwithstanding that the petitioner has succeeded before the appellate authority, the respondent did not process the petitioner's claim for refund and issued the following Deficiency Memos and Show Cause Notices:
i. Deficiency Memo dated 05.03.2022 in respect of claim for refund for ₹62,32,194/-.
ii. Show Cause Notice dated 21.02.2023 in respect of claim for refund for an amount of ₹46,38,276/-. iii. Deficiency Memo dated 16.11.2022 in respect of claim for refund for an amount of ₹1,53,31,257/-.
14. It is stated that the petitioner did not respond to the said Show Cause Notices or Deficiency Memos.
15. Mr. Singla, learned Counsel for the respondent, submits that the issues raised by the respondent relates to the furnishing of FIRCs. He has referred to the observations made by the appellate authority as referred above and submitted that the decision of the appellate authority is erroneous and the Revenue Signature Not Verified Digitally Signed W.P.(C) 5722/2023 Page 4 of 6 By:HARMINDER KAUR Signing Date:10.05.2023 17:31:58 Neutral Citation Number is 2023:DHC:3213-DB proposes to file an appeal against the said decision as and when an appellate tribunal is constituted.
16. We are also unable to appreciate the insistence on the part of the Revenue for the appellant to file fresh applications for the refund.
17. Mr. Singla fairly states that fresh applications for refund or Show Cause Notices would not be necessary, considering that the proceedings emanated from the petitioner filing applications for refund which was culminated in Orders-in-Appeals passed by the appellate authority.
18. In view of the above, the applications and the deficiency memos shall be treated as non est.
19. Undisputedly, the Revenue is entitled to file an appeal under Section 112 of the CGST Act, however, the said appeal is required to be filed within a period of three months. The said period has been extended as the Appellate Tribunal has not been constituted as yet.
20. We are unable to accept that the Revenue can ignore the orders passed by the appellate authority mainly on the ground that it proposes to file an appeal.
21. Suffice it to note that there is no order passed by the Court, staying the effect of the Orders-in-Appeal passed by the appellate authority. The respondent is also taking no steps for securing orders to that effect.
22. In view of the above, the present petition is liable to be allowed.
23. It is noted that the Orders-in-Appeal have not granted the petitioner, any interest. More than one year has elapsed in case of Order-in-Appeal dated 08.02.2022 and almost ten months have Signature Not Verified Digitally Signed W.P.(C) 5722/2023 Page 5 of 6 By:HARMINDER KAUR Signing Date:10.05.2023 17:31:58 Neutral Citation Number is 2023:DHC:3213-DB elapsed in respect of Orders-in-Appeal dated 28.07.2022.
24. In view of the aforesaid, the petitioner would also be entitled to interest in accordance with law. The present petition is allowed. The respondent is directed to forthwith disburse the petitioner's claim for refund along with interest as payable in accordance with law.
25. It is, however, clarified that this would not preclude the respondent from availing statutory remedy against the Orders-in-
Appeal, if, otherwise, the respondent is entitled to do so.
VIBHU BAKHRU, J AMIT MAHAJAN, J MAY 8, 2023 "SS"
Signature Not Verified Digitally Signed W.P.(C) 5722/2023 Page 6 of 6 By:HARMINDER KAUR Signing Date:10.05.2023 17:31:58