Appeal No.,E/20112/2020,E/20111/2020,E/20113/2020
OIA No. & Date,"322/2019 dated
28.11.2019","32382019 dated
28.11.2019","324/2019 dated
28.11.2019
OIO No. & Date,"80/2017-18® ED9
dated 05.01.2018
(Refund sanctioned:
Dept. appeal
admitted)","81/2017-18® ED9
dated 08.01.2018
(Refund sanctioned:
Dept. appeal
admitted)","30/2018® dated
28.09.2018 (Refund
Rejected)
Demand,"Rs.32,48,155/-","Rs.19,70,167/-","Rs.24,39,378/-
Period Involved,"October 2016 to
December 2016","January 2017 to March
2017",April 2017 to June 2017
Date of refund claim,03.10.2017,18.12.2017,19.01.2018
Period of Debit in
GSTR-3B",November 2017,November 2017,December 2017
4.1. He further submitted that with the introduction of Goods & Services Tax, filing of ER-2 Returns has been done away and further there was no",,,
facility in the ACES System to debit the value of refund claim amount at the time of filing after 01.07.2017 and therefore, the appellant had no option",,,
but to debit the refund claim amount only in GSTR-3B in the month of December 2017. Learned Counsel also submitted that the learned,,,
Commissioner in Para 13 has given the finding that exemption Notification has to be strictly construed and that too on the basis of language used,,,
therein and not on any other basis. He further submitted that the issue in hand in the present case was not pertaining to exemption rather the issue in,,,
hand was with respect to technical issue in the system with the introduction of GST wherein the compliance with Para 2(h) of Notification,,,
No.27/2012-CE was made next to impossible. He further submitted that the decisions relied upon by the learned Commissioner in the impugned order,,,
is not relevant to the facts of the present case.,,,
5. On the other hand, learned AR defended the impugned order and submitted that the appellant has not complied with the condition 2(h) of",,,
Notification No.27/2012 dated 18.06.2012. He further submitted that as per proviso to Section 142(3) of CGST Act, no refund shall be allowed of any",,,
amount of CENVAT credit where the balance of the said amount as on the appointed day has been carried forward under this Act.,,,
6. After considering the submission of both the parties and perusal of the material on record, I find that the common issue involved in all the three",,,
appeals is that whether the appellant is entitle for the refund of Rs.32,48,155/- (for October 2016 to December 2016), Rs.19,70,167/- (for January",,,
2017 to March 2017) and Rs.24,39,378/- (for April 2017 to June 2017) when the same amount has already been debited and reversed in GSTR-3B.",,,
Further, I find that when the appellant filed the refund claim for the respective periods, there was no facility to debit the refund claim in ER-2 Returns",,,
after the GST Act came into force. I also find that by the time the refund claim was filed, the appellant had already carried forward the closing",,,
balance of credit as on 30.06.2017 through TRAN-1. Further, I find that since no Return in ER-2 could be filed under GST Law and the appellant in",,,
order to satisfy the debit condition under Para 2(h) of the Notification No.27/2012, debited the refund claim amount in GSTR-3B in respective month,",,,
in fact, the credit was reversed under GST Law at the time of filing refund claim. Further, I find that an identical issue has been considered by the",,,
Tribunal in the case of Global Analytics India Pvt. Ltd. (supra) wherein the Hon’ble CESTAT on an identical set of facts has held as under:,,,
“It is an undisputed fact that the appellant did not reverse the equal amount as required by the condition at paragraph 2(h) of,,,
Notification No.27/2012 (supra). But the fact also remains that there was no provision in the ACES system to debit the value of refund and,,,
also the fact that the entire credit which was carried forward in TRAN-1 stood reversed by the appellant voluntarily in its GSTR-3B filed for,,,
the month of April 2018.7.2. The above facts, according to me, are sufficient compliances with the condition of paragraph 2(h) since post",,,
G.S.T., the scenario is different than the one prevailing prior to G.S.T. regime. Otherwise, it would become an impossible task for an",,,
assessee, more so when the filing of ST-3 returns itself was done away withâ€",,,
6.1. Further, this Tribunal in the case of GMT Consultant Detailing Pvt. Ltd. (supra) has held as under:",,,
“I find that the appellant have reversed the CENVAT credit in their CENVAT credit account but the same was not shown in the ST-3,,,
Returns because by the time refund was filed, GST has been introduced and filing of ST-3 returns itself was done away with. Further, I find",,,
that the appellant has voluntarily debited the refund amount in GSTR-3B during May 2018 which clearly complies with the conditions of the,,,
Notification. Further, the Board has also clarified the said position in its Circular No.58/32/2018-GST. Further, I find that in the case of",,,
M/s Global Analytics India Pvt. Ltd. Vs Commissioner of GST reported in 2019 ACR 388 CESTAT Chennai, on identical set of facts, the",,,
Tribunal has allowed the appeal of the appellant and set aside the denial of refund.â€,,,
6.2. Further, I find that in the case of M/s Fresenius Kabi Oncology Ltd. Vs Commissioner of CGST 2020 (37) GSTL 330 (Tribunal Chandigarh)",,,
wherein the Tribunal relied upon the decision in the case of Global Analytics India Pvt. Ltd. (supra) and allowed the appeal filed by the assessee. It is,,,
very strange that the learned Commissioner (Appeals) has failed to give any finding on the above relied upon decisions and he has placed reliance on,,,
decisions which are not relevant to the facts of the present case. The decisions relied upon by the learned Commissioner in the impugned order does,,,
not deal with the subject involved in these cases. The learned Commissioner (Appeals) in the impugned order has placed reliance on the decisions,,,
which deal with the exemption Notification and in those decisions, it has been held that exemption Notification should be construed strictly and if there",,,
is any ambiguity in the exemption Notification then the benefit should go to the Department and not to the assessee but these decisions are not,,,
applicable to the facts of the present case because in the present case, it is the claim of refund under Rule 5 of CCR and not any exemption",,,
Notification hence the decisions relied upon by the learned Commissioner are not applicable at all to the facts of the present case whereas the,,,
decisions relied upon by the appellant cited supra squarely applies the facts of the present case and therefore by following the ratio of the decisions,,,
relied upon by the appellant cited supra, I hold that rejection of the refund under Rule 5 of CCR read with Notification No.27/2012 is not sustainable in",,,
law and therefore I set aside the impugned order by allowing all the three appeals of the appellant.,,,
(Order pronounced in the open court on 16/06/2021),,,
