MSD Pharmaceuticals Pvt Ltd Vs Assistant Commissioner (Kerala High Court)
The Kerala High Court considered a GST refund application under Section 54 for 2017-18. The petitioner’s online refund application was acknowledged on 12.02.2019, while its manual application was filed on 14.11.2019. The refund was rejected on the ground that the hard copy was filed beyond the statutory two-year period under Rule 97A of the CGST Rules. The appellate authority also rejected the petitioner’s appeal.
The Court examined Rule 97A and held that it permits manual filing in addition to electronic filing. Since the online refund application had admittedly been filed on 12.02.2019, the Court held that the refund application ought to have been considered with reference to that date. The rejection was therefore held illegal and arbitrary.
The Court allowed the writ petition, set aside the rejection order and directed the first respondent to reconsider and dispose of the refund application in accordance with law within three months.
FULL TEXT OF THE JUDGMENT/ORDER OF KERALA HIGH COURT
The petitioner is an assesee under the provisions of the Central Goods and Services Tax/ State Goods and Services Tax Act, 2017. The dispute in this writ petition is with reference to an application seeking refund filed under Section 54 of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as ‘the Act’). According to the petitioner, the refund application has been presented within the statutory prescription of two years as evidenced by Ext.P12 receipt, as per which, the application is filed admittedly on 12.02.2019. Straightaway it may be noticed that the application acknowledged by Ext.P12 is the online application filed under the statute. However, this application has been processed by the impugned order at Ext.P2 with reference to the mandate under Rule 97A of the Central Goods and Services Tax Rules, 2017 (hereinafter referred to as ‘the Rules’) concluding that the petitioner has chosen to file the “hard copy” of the application only on 14.11.2019, which is well beyond the statutory prescription of two years. Stating this reason, the application seeking refund with respect to the assessment year 2017-18 has been rejected by the impugned order at Ext.P2.
2. Heard Sri.Karthik S.Nair, the learned counsel for the petitioner, as well as Sri.Mohammed Shafi K., the learned Government Pleader.
3. The learned Government Pleader, however, submits that the order at Ext.P2 was challenged by the petitioner by filing an appeal under Section 107 of the Act, and that the Appellate Authority has also rejected the same by Ext.P1. Therefore, according to the learned Government Pleader, it is for the petitioner to file a further appeal to the Tribunal under Section 112 of the Act.
4. Sri. Karthik would, however, point out that the order of the Appellate Authority at Ext.P1 is also a non-speaking one, insofar as the contention with reference to the online filing of the refund application, as has been specifically raised in ground Nos.2 and 3, has not been considered by the Appellate Authority.
5. In any event, I am of the opinion that, since the issue is with reference to the processing of a refund application, which appears to have been rejected with reference to the mandate under Rule 97A, the question requires to be considered by this Court, since, admittedly, the writ petition has been pending consideration before this Court for more than three years. Even if an appeal has been preferred to the Tribunal, ultimately, the afore matter requires to be considered with reference to the mandate under Rule 97A, and if it is found that the matter requires to be reconsidered, the files requires to be remitted to the original authority.
6. Hence, even on the face of the provisions of Section 112 of the Act, this Court proceeds to consider the legality or otherwise of the findings contained in Ext.P2.
7. As already noticed, Ext.P2 has been issued only because Rule 97A provided for the filing of a manual application. Rule 97A of the Rules provides as under;
“97A. Manual filing and processing. – Notwithstanding anything contained in this Chapter, in respect of any process or procedure prescribed herein, any reference to electronic filing of an application, intimation, reply, declaration, statement or electronic issuance of a notice, order or certificate on the common portal shall, in respect of that process or procedure, include manual filing of the said application, intimation, reply, declaration, statement or issuance of the said notice, order or certificate in such Forms as appended to these rules.”
A reading of the afore provision would show that the rule making authority has only thought of providing that a manual application can also be presented with reference to a refund claim. This is made clear by use of the word “include” under Rule 97A. Therefore, merely for the reason that in tune with Rule 97A, the petitioner chose to file a manual refund application on 14.11.2019, I am of the opinion that the rejection of the application seeking refund was illegal and arbitrary. The application seeking refund ought to have been considered with reference to the online application admittedly acknowledged on 12.02.2019.
8. Hence, I am of the opinion that the matter requires a revisit at the hands of the 1st respondent herein.
Therefore, this writ petition would stand allowed, setting aside Ext.P2. The 1st respondent is directed to consider the refund application in accordance with law. The application requires to be processed and disposed of, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment.
