Case Law Details
Appario Retail Private Limited Vs Union of India (Telangana High Court)
Conclusion: Assessee could not be compelled to wait for eternity to agitate its claim seeking refund under the provisions of GST of the amount to which it was entitled to under the statute and also blocking its funds affecting its cash flows, merely because of existence of (non functional) alternate forum/remedy on paper, by not invoking the jurisdiction under Article 226 of the Constitution of India.
Held: Assessee was engaged in the business of trading of electronic goods over e-commerce platform under GST. On receiving orders through Electronic Commerce Operator ( ‘ECO’), the sale was affected through ECO and goods were dispatched to customers; and that tax liability was discharged by assessee by debiting the Electronic Credit ledger. TCS amount collected by the ECO and deposited with the Government represented the portion of the consideration receivable by assessee for supplies made through ECO; that the balance in electronic cash ledger was entitled to refund under the category of ‘refund of excess balance of electronic cash ledger’. Revenue would contend that the refund was to be in accordance with the provisions of Section 54(1) of the CGST Act, which applied only to the amount paid by a claimant into the electronic cash ledger, but not the amount which had been deducted and deposited by ECO. Assessee contended that, though the impugned Order-in-Appeal could be appealed before the Hon’ble Goods and Service Tax Appellate Tribunal, the said Appellate authority had not been constituted in the State of Telangana, as on date, even though more thar three years have passed by after the introduction of GST with effect from 01.07.2017. Thus, assessee was invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. Revenue claimed assessee was expected to first exhaust the channel of appeal before the Appellate Tribunal and not by way of filing the present writ petition under Article 226 of the Constitution of India. It was held that clarification provided by CBIC in the form of question and answer, left no doubt as to the entitlement of assessee to claim refund of the excess balance in its electronic cash ledger, which included the amount that had been collected by ECO under Section 52 of the CGST Act from the net value of consideration payable to assessee in respect of sales/supplies effected through it, as such amount paid to the Government was allowed as a credit in the electronic cash ledger of assessee under Section 49(1) of the CGST Act and such balance being eligible for refund under Section 49(6) of the CGST Act. Therefore, assessee was entitled to claim refund of the balance in electronic cash ledger under proviso to sub-section (1) of Section 54 of the CGST Act. More so, assessee could not be compelled to wait for eternity to agitate its claim seeking refund of the amount to which it was entitled to under the statute and also blocking its funds affecting its cash flows, merely because of existence of (non functional) alternate forum/remedy on paper, by not invoking the jurisdiction under Article 226 of the Constitution of India. Further, mere existence of alternative remedy is no bar for invoking the jurisdiction under Article 226 of the Constitution of India, when right to carry on business is being impeded, resulting in violation of fundamental right as guaranteed under Article 19(1)(g) of the Constitution of India.
FULL TEXT OF THE JUDGMENT/ORDER OF TELANGANA HIGH COURT
This Writ Petition is filed primarily assailing the Order-in- Appeal No.HYD-GST-RRC-APP-091-20-21 (APP I), dt.29.12.2020, passed by the 4th respondent, whereby the said respondent had set aside the order passed by the 5th respondent in Appeal No.03/2020-RR(GST)JC-D-D, dt.24.06.2020, denying the refund of excess amount lying to the credit of electronic cash ledger of the petitioner maintained under the Central Goods and Services Tax Act, 2017 (for short, ‘the CGST Act’).
Please become a Premium member. If you are already a Premium member, login here to access the full content.
Author Bio
