The Hon’ble Madhya Pradesh High Court in Prism Johnson Ltd. V. Union of India [Writ Petition No. 9226 of 2020 dated June 13, 2022] held that, orders denying refund claim to the assessee for accumulated credit of Compensation Cess, where the reason of claim being time barred is absent but certain other reasons have been assigned that are sufficient to enable the assessee to know the cause for rejection of the claim for refund cannot be categorized to be non-speaking. Further, relegated the matter for avail the alternate remedy of appeal
This petition has been filed by Prism Johnson Ltd. (“the Petitioner”) against the Show Cause Notice (“SCN”) along with consequential Orders (“the Impugned Orders”) passed by the Revenue Department (“the Respondent”) refusing claim for refund for accumulated credit of Compensation Cess, on the grounds that the refund is wrongly being denied to the Petitioner and non-speaking of the Impugned Orders. Thus, in violation of principles of natural justice.
The Respondent contended as below:
1. The Refund claim is time barred in view of Section 54(14)(2) of the Central Goods and Services Tax Act, 2017 (“the CGST Act”).
2. No record under credit ledger for accumulated ITC of cess was available, nor was the Input Tax Credit (“ITC”) of cess availed by the Petitioner.
3. The Refund claim does not hold merit on account of Circular No. 125/44/2019-GST dated November 18, 2019, which discuss about the guidelines for claims of refund of Compensation Cess.
4. The Refund claim was wrongly made under the head of “any other” instead of “refund of unutilized ITC on account of export without payment of tax”.
5. Maintainability of the petition is untenable as the Petitioner did not exhaust the statutory remedy of appeal available under Section 107(1) of the CGST Act.
Whether the petition to the High Court is tenable without exhausting the appeal provision under Section 107(1) of CGST Act?
The Hon’ble Madhya Pradesh High Court in Writ Petition No. 9226 OF 2020 dated June 13, 2022 held as under:
Section 107(1) of the CGST Act:
“Appeals to Appellate Authority
(1) Any person aggrieved by any decision or order passed under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act by an adjudicating authority may appeal to such Appellate Authority as may be prescribed within three months from the date on which the said decision or order is communicated to such person.”
FULL TEXT OF THE JUDGMENT/ORDER OF MADHYA PRADESH HIGH COURT
Both the writ petitions, namely, W.P. No.9226 of 2020 and W.P. No.9231 of 2020 involve common question of facts as well as law and, therefore, are being decided by this common order.
2. These petitions assail not only the show cause notices issued but also the consequential orders passed by the competent authority refusing claim for refund of accumulated credit of compensation cess.
3. The principal grounds of challenge to the aforesaid show cause notices and subsequent orders are that the refund despite being due to the petitioner in law has been wrongly denied and the consequential orders of refusal to refund are non-speaking.
4. Learned counsel for Revenue has filed a counter-reply refuting submissions of petitioner by primarily submitting that the impugned consequential orders declining refund contain sufficient reasons to save them from being sacrificed at the alter of natural justice. On merits, the respondents in their counter-reply also submits that the claim for refund made by the petitioner was time barred on the anvil of Section 54 (14) (2) of the Central Goods and Services Tax Act, 2017. It is also submitted by the Revenue that in terms of Section 16(4) of CGST Act, 2017, the claim for refund was untenable on facts and also on law. The Revenue further submits that since the petitioner did not avail the input tax credit of compensation cess on coal during the relevant period, the claim for refund for the financial year 2017-18 and 2018-19 is inadmissible. More so, the Revenue contends that the petitioner submitted the application for refund under the wrong category of “any other” whereas the correct category was “refund of unutilized ITC on account export without payment of tax”. Lastly, the Revenue objected to the maintainability of this petition for petitioner’s failure to avail the statutory remedy of appeal u/S. 107 of CGST Act.
5. After having heard learned counsel for the rival parties at length and having perused the consequential orders declining refund, it is obvious that said orders contain reasons in the remarks column, which are as follows:
(i) Refund claim is time barred.
(ii) Neither ITC of cess availed in GSTR3B nor accumulated of ITC of cess is available in Credit Ledger for relevant period.
(iii) The refund is inadmissible on the anvil of para 43 of Circular No.125/44/2019-GST dated 18.11.2019.
6. In some of the impugned orders, the reasons assigned are either all the above three but in some the reason of claim being time barred is absent.
6.1 In other words, the claim for refund has been declined by assigning reasons which may be cryptic on bare perusal but are sufficient to enable the assessee to know the exact cause for rejection of the claim for refund. The reasons assigned could have been more elaborate but that by itself cannot render the impugned orders vitiated. The reasons assigned are sufficient to save the orders from being sacrificed at the alter of natural justice (non-speaking order). Pertinently, the reasons assigned cannot categorize the impugned orders to be non-speaking since they do not dissuade the assessee from knowing the mind of the adjudicating authority or dissuading from filing an appeal.
7. Certain other reasons have been assigned by the Revenue to support impugned orders, which this Court declines to go into in the face of the unavailed alternative statutory remedy of appeal u/S. 107 of the C.G.S.T. Act.
8. Accordingly, this Court declines interference and relegates the petitioner to avail remedy of appeal u/S. 107 of the C.G.S.T. Act, 2017, which, if availed, within a period of 60 (sixty) days from today, then the same shall be considered and decided on its own merits without being dismissed on limitation alone.
9. With the aforesaid liberty, both the writ petitions stand
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