OFFICE OF THE COMMISSIONER (APPEALS)
CENTRAL EXCISE & CGST, JAIPUR
NCRB, STATUE CIRCLE, JAIPUR-302005

C. No. APPL/JPR/CGST/JP/06/111/19/152
DIN No. 20200563RW00009TBB48

Dated: 06/05/2020

Order-in-Appeal No. 39(JPM)CGST/JPR/2020 dated 27.04.2020

Appellant

M/s. Baba Super Minerals Pvt. Ltd.

Office No. 11, 4th Floor, Alankar Plaza, Central Spine, Vidyadhar Nagar, Jaipur-302039

OIO No. & Date

65, GST/ITC/BSMPL/2018-19, dated 10.12.2018

Respondent

The Assistant of Commissioner CGST Division-B, Jaipur.

Any person aggrieved by this Order-in-appeal may file an appeal or revision application, as the case may be against such order, to the appropriate authority in the following way:-

1. This Order-in-Appeal is passed under section 107 of the Central Goods and Service Tax Act, 2017.

2. This copy of Order in Appeal is provided, free of cost to the appellant for their personal use.

3. Any person aggrieved by this order passed against him under section 107 of Central Goods and Service Tax Act, 2017, may file appeal before Goods and Service Tax Appellate Tribunal (GSTAT) in term of Section 112 of the Central Goods and Service Tax Act, 2017 read with Rule 110, 111 of the Central Goods and Service Tax Rules, 2017 and removal of difficult Order No. 09/2019-Central Tax Dated 03.12.2019.

OFFICE OF THE COMMISSIONER (APPEALS)
CENTRAL EXCISE AND CENTRAL GOODS & SERVICE TAX
NCR BUILDING, STATUE CIRCLE, JAIPUR (RAJ)

C. No. APPL/JPR/CGST/JP/06/111/19/152

Dated: 06/05/2020

ORDER-IN-APPEAL NO (JPM) CGST/JPIV2020
PASSED BY J.P. MEENA, ADDITIONAL COMMISSIONER (APPEALS)
CENTRAL GOODS & SERVICE TAX, JAIPUR

This appeal has been tiled under Section 107 of the Central Goods and Service Tax Act, 2017 by M/s Baba Super Mineral Pvt. Ltd., office No. 11, 4th Floor, Alankar Plaza, Central Spine, Vidyadhar Nagar, Jaipur-302039 (hereinafter also referred to as “the appellant”) against the Order-in-Original No. 65/GST/ITC/BSMPL/2018-19 dated 10.12.2018(hereinafter called as the  “impugned order”) passed by the Assistant Commissioner, Central Goods Service Tax Division-B, Jaipur(hereinafter called as the “adjudication authority”).

2. BRIEF FACTS OF THE CASE:

2.1 The appellant having GSTIN 08AAECB3774BIZW filed application for claim of refund of unutilized ITC amounting to Rs.37,30,042/-(IGST Rs 9.10.493/-, CGST Rs.14,09.775/- and SGST Rs.14,09,775/-) for the month of March 2018. After considering the submission made by the appellant, the adjudicating authority found that the claim of refund amounting to Rs.14,446/- (CGST Rs. 7,223/- and SGST Rs. 7,223/-)was liable to be rejected on the various reasons; therefore impugned order dated 10.12.2018 was issued to the appellant.

3. Being aggrieved with the impugned order, the appellant has filed the appeal on various grounds which are summarized as under.:

that without appreciating the documents available on records, provisions of GST Law and in violation of principle of judicial discipline, the adjudicating authority has passed a non-speaking impugned order dated 10.12.2018.

that merely on presumption and assumption basis part refund claim is rejected and onus to prove the allegations levelled against the appellant is not discharged by the revenue For this the appellant has drawn the attention of relevant provisions of the Indian Evidence Act, 1872 and Indian Penal Code, 1860.

that refund claim rejected on improper documents issued by the supplier, the appellant humbly state that the invoices have already been rectified by the suppliers on request of the appellant to comply the provisions of Rule 46 of CGST Rules, 2017. Copy of invoices are also placed.

that Circular No.37/11/2018-GST dated 15.03.2018 has been issued to clarify various issues in relation to processing of claims for refund. In Para-15 of the circular it is stated that “It is also advised that refunds may not be withheld due to minor procedural lapse or non-substantive errors or omission” therefore it is humbly requested for not to withheld refund claim due to minor procedural lapse or non-substantive errors or omission.

that it is well settled law that notification or circular in relation to procedural aspect should be given very liberal interpretation and that might be considered clarificatory in nature. Whereas, there is no dispute about admissibility of ITC and refund claim except some minor procedural errors which are not leading any irregularity about tax paid on inward supplies hence refund may kindly be allowed.

The appellant has also cited various case laws in their defence.

that the Apex Court has pronounced in the matieL of Mangalore Fertilizers & Chemicals V/s Deputy Commissioner 1991(55) ELT 437 (SC) that so long there is substantive compliance of the law the benefit can not be denied.

that they also relied upon judgement announced in the matter of Commissioner of Central Excise & Service Tax, Raipur V/s Satyam Balaji Rice Industries (P) Ltd.. 2015 (39) STR 1004 (Tri.Del) and Commissioner of Central Excise Pune-I and ViS Fujitsu Consulting Pvt Ltd., 2016 (41) STR 728 (Tri.-Mumhai) wherein similar issue decided in favour of assessee.

that in the matter of M/s S.G.Sales Corporation, Hon’ble Commissioner (Appeals) Central Excise and Service Tax, Jaipur has also taken the same view that if the substantive compliance is made the benefit may not be denied.

that in the matter of appellant itself the Hon’ble Commissioner (Appeals) Central Excise & Service Tax, Jaipur has appreciated that minor procedural lapse may not be taken into account while deciding issue of refund claim. Copy of judgement are also placed on records.

that regarding refund claim rejected on payment voucher not submitted in reference to invoice No. TSLS/339/17-18 dated 19.03.2018 of Tristar Logistic solutions, we state that we have not paid to supplier yet and condition of payment within 180 days is not applicable in the case of inward supply covered under R.C.M.

that whereas, as per Rule 36(b) of CGST Rules, 2017 Input Tax Credit on invoice of inward supply covered under Reverse Charge Mechanism is available at the time of payment of tax and no payment voucher is required for taking of Input Tax Credit.

4. Personal hearing in the matter was held on 11.02.2020 wherein Shri Ravi Gupta Advocate appeared and explained the case in detail and reiterated the submission made in their appeal memo and requested to decide the appeal at the earliest.

5. I have carefully gone through the case records and submission made in the appeal memorandum as well as oral submission at the time of personal hearing. I find that the adjudicating authority has rejected the part amount of refund claims on the various grounds. I take up the issue involved therein one by one.

6.1 The adjudicating authority has denied the refund of Rs.7946/-(CGST=3973/- + SGST-39731= Total Rs.7946/-)on the ground that the address of the recipient is not mentioned on the invoices of M/s Adinath Indu;tries, Further, in the copy of GSTR-2A, M/s Kamla Iron Store is nowhere mentioned. GSTIN of the recipient is not mentioned on the invoice of M/s OM Metals Auto Pvt Ltd. On the invoice of M/s Shri Sanwariya Trading Company, Fatchnagar also the address of recipient is not mentioned, Invoices submitted in reply to the deficiency memo are not acceptable as the details of address and GSTIN were not present on the invoices at the time of filing of refund claim and on the invoices submitted in reply to the deficiency memo the details of address and GSTIN have been typed later on the same original invoice copies. Thus, the appellant has contravened the provisions the Rule 46 and the Notification No.39/2018- Central Tax, dated 04.09.2018.

The adjudicating authority has also alleged that as per Section 31 (g) of the CGST Act, 2017, payment voucher is required to be issued by the registered person who is liable to pay tax under section (3) or sub section (4) of Section 9. As the assessee has submitted copies of payment voucher in respect of RCM invoices amounting to GST Rs.97,250/- (CGST Rs.48.265/- and SGST Rs.48265/-) out of the total ..fisputed GST amount of Rs.1,03,750/- . The remaining amount of GST Rs.65001- (CGST Rs.3250/- and SGST Rs,3250/-) pertaining to the invoice No.TSLS/339/17-18 dated 19.03.2018 of M/s Tristar Logistics Solutions is inadmissible to the assessee.

As per Rule 46 of CGST Rules, 2017 Tax Invoice- Subject to rule 54,a tax invoice referred to in section 31 shall he issued by the registered person containing the following particulars namely‑

(a) Name, address and Goods and Service Tax Identification Number of the supplier.

(b) A consecutive serial number not exceeding sixteen characters, in one or Multiple serios, containing alphabets or numerals or special characters- hyphen or dash and slash as “_” and “/” respectively. and any combination thereof, unique for a financial year;

(c) Date of its issue:

(d) Name, address and Goods anti Service Tax Identification Number or Unique Identify Number, if registered, of the recipient;

(e) Name and address of the recipient and the addres,s of delivery, along with the name of the State and its code, if such recipient is unregistered and where the value of the taxable supply is fifty thousand rupees or more;

(f) Name and address of the recipient and the address of delivery, along with the name of the State and its code, if such recipient is unregistered and where the value of the taxable supply is less than fifty thousand rupees and the recipient requests that such details he recorded in the tax invoice:

(g) Harmonised System of Nomenclature coddle for goods or services;

(h) Description of goods and services;

(i) Quantity in case of goods and unit or Unique Quantity Code thereof;

(j) Total value of supply of goods or services or both:

(k) Taxable value of the supply of goods or services or both taking into account discount or abatement if any;

(l) Rate of tax (Central tax. State tax, Integrated tax. Union territory tax or cess);

(m)Amount of tax charged in respect of taxable goods or services (Central tax, State tax, Integrated tax, Union territory tax or cess);

(n) Place of supply along with the name of the State, in the case of a supply in the course of inter-State trade or commerce;

(o) Address of delivery where the same is different from the place of supply;

(p) Whether the tax is payable on reverse charge basis; and

(q) Signature or digital signature of the supplier or his authorised representative:

Provided that the Board may, on the recommendation of the Council, by notification, specify‑

(i) the number of digits of Harmonised System of Nomenclature code for goods or services that a class of registered persons shall be required to mention, for such period as may he specified in the said notification; and

(ii) the class of registered persons that would not be required to mention the Harmonised system of Nomenclature code for goods of services, for such period as may be specified in the said notification.

Provided further that where an invoice is required to be issued under clause (f) of sub-section (3) of Section 31, a registered person may issue a consolidated invoice at the end of a month for supplies covered under sub-section (4) of Section 9, the aggregate value of such supplies exceeds rupees five thousand in a day from any or all the suppliers:

In this regard, I find that appellant has stated that now the invoices have already been rectified by the suppliers on the request of the appella4t and the copies of the same have also been annexed with the appeal memo thus thereby complied Rule 46 of the CGST Rules, 2017.

Further, as per sub-rule (I) of Rule 36 of the CGST Rules, 2017- The input tax credit shall he availed by a registered person, including the Input Service Distributor, on the basis of any of the following documents, namely:,-

(a) an invoice issued by the supplier of goods or services or both in accordance with the provisions of Section 31;

(h) an invoice issued in accordance with the provisions of clause (f) of sub-section (3) of Section 31, subject to the payment of tax;

(c) a debit note issued by a supplier in accordance with the provisions of Section 34;

(d) a bill of entry or any similar document prescribed under the Customs Act, 1962 or rules made thereunder for the assessment of integrated tax on imports;

(e) an Input Service Distributor invoice or Input Service Distributor credit note or any document issued by an Input Service Distributor in accordance with the provisions of sub-rule (1) of rule 54.

As per sub rule (2) Input Tax Credit shall he availed by a registered person only if all the applicable particulars as specified in the provisions of Chapter-VI are contained in the said document, and .the relevant information, as contained in the said document, is furnished in FORM GSTR-2 by such person:

[Provided that if the said document does not contain all the specified particulars but contains the details of the amount of tax charged. description of goods or services, total value of supply of goods or services or both, GST1N of tie supplier and recipient and place of supply in case of inter-State supply, input tax credit may be availed by such registered person.]

7. Regarding refund claim rejected on paymen voucher not provided by the assessee for the RCM invoice No. TSLS/339/17-18 dated 19.03.2018 of M/s Tristar Logistics Solutions‑

Invoice and Payment Voucher by a person liable to pay tax under reverse charge

A registered person liable to pay tax under reverse charge (both for supplies on which tax is payable under reverse charge mechanism and supplies received from unregistered persons) has to issue an invoice in respect of goods or services or both received by him. Such a registered person in respect of such supplies also has to issue a payment voucher at the time of making payment to the supplier. In this regard, the appellant in their appeal memo stated that they have not paid to supplier yet and condition of payment within 180 days is not applicable in the case of inward supply covered under reverse charge mechanism.

As per the second proviso to Section 16 of the CGST Act. the recipient of supply will not lose the ITC of the tax paid under RCM even if payment to the supplier is not made within 180 days of the supplies.

Circular No. 37/11/2018-GST dated: 15/03/2018 has been issued to clarify. various issue in relation to processing of claims for refund. In para 15 of the circular it is stated that it is also advised that refunds may not be withheld due to minor procedural lapse or non-substantive errors or omission-and requested for not to withheld refund claim due to minor procedural lapse or non-substantive errors or omission.Whereas, vide notification No. 39/2018-Central Tax. dated: 04/09/2018 proviso of sub rule 2 of rule 36 has been inserted wherein it is mentioned that,

“Provided that if the said document does not contain all the specified particulars but contains the details of the amount of tax charged, description of goods or services, total value of supply of goods or services or both, GSTIN of the supplier and recipient and place of supply in case of inter-State supply. input tax credit may he availed by such registered person”

8. I find force in the contention of the appellant and also observe that the export related refunds should not be rejected due to minor procedural lapse or non-substantive errors or omission which can be rectified subsequently. The appellant is directed to submit the original rectified invoices duly authenticated by the suppliers before the adjudicating authority for verification who may sanction the refund involved therein if the same is found in order and admissible otherwise.

9. The above appeal filed by the appellant is disposed.off in the above manner.

(J.P. MEENA)
ADDITIONAL COMMISSIONER (APPEALS)

Regd. A/D

M/s Baba Super Mineral Pvt. Ltd.,
office no. 11, 4th Floor. Alankar Plaza,
Central Spine, Vidy adhar Nagar, Jaipur

Copy to:

1. The Chief Commissioner, Central Goods & service Tax(JZ), Jaipur.

2. The Commissioner, Central Goods & service Tax, Jaipur

3. The Deputy/Assistant Commissioner, Central Goods & service Tax Division-B, Jaipur

4. The Commissioner, State Tax, Kar Bhawan, Bhawani Singh Road, Ambedkar Circle, Jaipur-302001 (Rajasthan)

6. Guard File.

Superintendent (Appeals)

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