M/s.Barry-Weihmiller International Pvt. Ltd. vs Commissioner Of GST And Central Tax

The issue involved in all these three appeals being the same, they are heard together and are disposed of by this common order.

Brief facts are that the appellants filed three refund claims under Rule 5 of Cenvat Credit Rules, 2004 in terms of Notification No.27/2012-CE(NT), dated 18.06.2012 for the following periods:

(i) Oct.'16 to Dec.'16 on 27.09.2017 for Rs.42,70,597/-;

(ii) Jan.'17 to Mar.'17 on 21.12.2017 for Rs.35,06,368/-;

(iii) Apr.'17 to Jun.'17 on 23.03.2018 for Rs.43,71,779/-.

2.1 The appellants submitted all the necessary documents, while filing the refund claims and requested the department concerned to conduct the adjudications of refund claims without issuing show-cause notice expecting proper adjudication.

2.2. The appellant expected the refund claims will be adjudicated in proper manner without a personal hearing and will be perusing all the relevant documents submitted during the filing of refund claims.

2.3 The refund claims were rejected on the following common grounds:-

(a) Certain FIRCs were addressed to unregistered premises, the same cannot be considered;

(b) Certain FIRCs were not produced and, therefore, not considered as Export Turnover;

(c) Some invoices were rejected as it is addressed to unregistered premises, and, therefore, the same was considered as ineligible;

(d) The appellant did not have any CENVAT balance left at the time of filing the refund claim, the appellant has not complied with the conditions 2(g) and 2(h) of Notification No.27/2012-CE(NT), dated 18.06.2012;

(e) Ceiling the provisions of section 142(3) of CGST Act, 2017, the learned adjudicating authority rejected the refund claim; and

(f) The appellants had not debited the amount of refund claimed in their ST-3 return.

2.4 Aggrieved by the order of adjudication, the appellants filed appeals before Commissioner (Appeals), who upheld the same. Hence these appeals.

The learned counsel Shri Rabeen Jayaram appeared for the appellants. He submitted that the appellants had waived the issue of show-cause notice and personal hearing as they were under the impression that the adjudicating authority would go through the documents submitted by them carefully. As there was no personal hearing they could not explain the details with regard to the debit made therein as required under clause 2(h) of the said notification. The adjudicating authority has rejected the refund on the ground that the FIRCs were addressed to unregistered premises. It is pointed out by him that the Commissioner (Appeals) in the appellant's own case for a different period had allowed the refund in respect of the issue that FIRCs are addressed to unregistered premises. He also relied upon the decision in the case of M/s. Convance Clinical Development Pvt. Ltd., Vs Commissioner of Central Tax, Bengaluru (East) reported in 2021-TIOL-377-CESTAT-Bang. He argued that after the introduction of GST, the debit to be made as required under clause 2(h) of the said notification can be only reflected as credit under GSTR 3B, which has been complied by the appellants. He prayed that the matter may be remanded before the adjudicating authority so that the appellants can bring out their case with necessary submissions and documents.

The learned Authorised Representative Shri M. Jagan Babu supported the findings in the impugned order.

Heard both sides.

After perusal of records as well as hearing both sides, it is seen that the appellants have not been able to explain the required documents before the refund sanctioning authority. The learned counsel has submitted that they would be able to produce and also explain in regard to necessary documents if they are given further chance. Taking note of the facts of the case, I am of the view that the matter requires to be remanded to the refund sanctioning authority. Ordered accordingly. The appeal is allowed by way of remand to the refund sanctioning authority, who shall conduct de novo processing of the refund claim filed in these appeals.

(Dictated and pronounced in open court)