Case Law Details
M/S Bushrah Export House , Lucknow Thru. Sole Proprietor Syed Asif Ali Vs Union Of India (Allahabad High Court)
In Bushrah Export House Vs Union of India Thru., the Allahabad High Court addressed a dispute over the refund of Input Tax Credit (ITC) amounting to ₹98,62,180 for the period April-May 2020. The petitioner, a garment exporter, had initially filed a refund application on October 18, 2023, which was acknowledged. However, a show cause notice issued on March 14, 2024, far exceeded the statutory time limit under Section 54(7) of the CGST Act, 2017. The petitioner responded to the notice, but their explanation was disregarded, leading to the rejection of their claim via an order on May 1, 2024. The petitioner sought relief through this writ petition, citing delays and procedural lapses.
The Court noted that a related matter involving the petitioner is pending in a Special Appeal but clarified that the cause of action in this case is distinct. It acknowledged the petitioner’s mistaken approach to the High Court and directed them to file an appeal with the appropriate appellate authority as per Section 107 of the CGST Act. The appellate authority has been instructed to consider the appeal on its merits, recognizing the significant time already spent by the petitioner on this matter.
FULL TEXT OF THE ORDER OF ITAT ALLAHABAD
Heard Sri Yashovardhan Swarup, learned counsel for the petitioner, learned standing counsel who appears on behalf of the State-respondent., Sri Saurav Mishra who has filed his memo of appearance on behalf of opposite party no. 1, which is taken on record and Sri Saurav Yadav who appears for the opposite party nos. 2 to 4.
This petition has been filed by the petitioner with the following main prayers:-
“i. a Writ of Certiorari of a writ, order or direction in the nature of certiorari quashing the order dated 01.05.2024 passed by the Opposite Party No.4 contained in Annexure No. 2 to this writ petition;
ii. a Writ of Certiorari of a writ, order or direction in the nature of certiorari quashing the) show cause notice the show cause notice dated 14.03.2024 (GST RFD-6) with respect to ARN AA0910231032948A contained in Annexure No.3 to this writ petition;
iii. Writ of Mandamus commanding the Opposite Parties to refund the amount of Rs. 90,97,998.00 (Rupees Ninety lakh ninety seven thousand nine hundred ninety eight) as claimed vide ARN AA0910231032948A dated 18.10.2023 for the period of April 2020 to May 2020 for a total sum of Rs. 98,62,180.00 (Rupees Ninety eight lakh sixty two thousand one hundred eighty);
iv. a Writ of Mandamus commanding the Opposite Parties to disburse the amount of Rs. 98,62,180.00 (Rupees Ninety eight lakh sixty two thousand one hundred eighty) forth with along with applicable interest;”
It is the case of the petitioner that the petitioner is a manufacturer and exporter of garments since 2002 and is registered under the GST. It purchases raw material form Gujarat and manufacture garments which is exported therefore, it claimed the Input Tax Credit refund by an application dated 18.10.2023 for a period of April 2020 to May 2020 for total sum of Rs.98,62,180/-. Such application was acknowledged by the opposite party no. 4 by the letter dated 3.11.2023. A show cause notice was issued to the petitioner on 14.3.2024 with respect to application dated 18.10.2023 which is much beyond the limitation prescribed under section 54 (7) for the CGST Act.
The petitioner submitted its explanation/reply which has not been considered and the impugned order has been passed on 1.5.2024.
The counsel appearing for the respondent nos. 2 to 5 has raised the preliminary objection regarding maintainability of the petition and he says under section 107, the petitioner has statutory remedy of filing an appeal.
Learned counsel for the petitioner has submitted that the petitioner’s case with regard to the same claim for Input Tax Credit. refund is pending before this Court in Special Appeal No. 41 of 2023. He has referred to order passed by the Additional Commissioner Appeals Customs, GST and Central Excise dated 16.8.2021 wherein, the claim for refund was allowed by the appellate authority against which the department filed Writ C No. 29052 of 2021, Principal Commissioner, CGST versus M/S Bushrah Export House. The Court set aside the order dated 13.8.2021 by detailed order on 5.9.2022.
Learned counsel appearing on behalf of the respondent has pointed out that the earlier writ petition had arisen out of an appeal filed by the petitioner before the appellate authority and the period for which refund was claimed by the petitioner was also different and the amount of refund claimed was Rs. 1,84,17,252/- as is evident from the appellate authority’s order. In the instant case, the petitioner has claimed a refund of Rs. 98,62,180/- as ITC for purchases made by for different period.
We have been convinced that even though, a Special Appeal is pending before this Court in a case relating to the writ petition, but the cause of action in the said Special Appeal is different.
The writ petition is disposed of with the direction to the petitioner to approach the appellate authority against the orders impugned. It is directed that the appellate authority shall consider the appeal of the petitioner on its merits as the petitioner has spent valuable time in pursuing the writ petition filed mistakenly before this Court.
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