ORDER

Heard finally with the consent of both the parties.

In this petition under Article 227 of the Constitution of India, the petitioner has prayed for the following reliefs:

(a) to call for the relevant records of the case from the respondents.

(b) to set aside the impugned refund rejection order dated 04.01.2021(Annexure P-2) passed by Respondent no.3 as well as the impugned appellate order dated 24.08.2021(Annexure P-1) passed by Respondent No.2 in Appeal No. IND-CGST-000-APP- 069 2021-22, by a writ of CERTIORARI or any other appropriate writ, direction or order;

(c) to command the Respondents to refund a sum of unutilised ITC of Rs. 1,34,670/- on account of zero rated supply of goods by the petitioner to SEZ Unit/Developer with payment of tax alongwith admissible interest, by a writ of MANDAMUS or any other appropriate writ, direction or order.

(d) to pass such other order(s) as may be deemed appropriate in the facts and circumstances of the case, to grant relief to the petitioner.

2. The brief facts of the case are that the petitioner M/s Bajrang Agro Industries Pvt. Ltd. (Oil Division) was engaged in the business of manufacturing Soyabean refined oil. The company is registered under the GSTIN 23AABCB3958N1ZG. Petitioner supplied Lecithin(herinafter referred to as ‘goods’) to M/S Kanav Agromony, Plot No. 11, Mihan SEZ, Khapri, Nagpur (Maharashtra) under the Invoice No. 1819 – GO609 amounting to Rs. 8,82,841/- (Rupees Eight Lakhs Eighty Two Thousand Eight Hundred and Forty One) dated 17.09.2018 and the goods came to be received by the concerned SEZ unit. In this transaction, the petitioner paid IGST to the tune of Rs. 1,34,670/- (Rupees One Lakh Thirty Four Thousand Six Hundred and Seventy). The petitioner thereafter filed refund application u/S 54 of the Central Goods and Services Tax Act, 2017(hereinafter referred to as the ‘Act of 2017’) initially on 12.10.2020 claiming refund of IGST paid on 17.08.2018 to the tune of Rs. 1,34,670/- on “zero rated supply” with payment of tax in view of Section 16(1) (d) of the Integrated Goods and Services Tax, 2017 to a SEZ Unit for authorized operation. However, a deficiency memo was issued citing certain deficiencies. Petitioner filed an application on 18.11.2022 under ARN No. AA231120017468Q which came to be rejected by the respondent no. 3 citing non-compliance of the provisions of Circular No. 125/44/2019 -GST dated 18.11.2019 on the following two grounds:

(a) the refund application has been filed after two years from the relevant date and therefore the same is inadmissible being time barred;

(b) the certificate/declaration/list of invoice endorsed by the specified officer of the SEZ has not been appended and, therefore, the refund claim is inadmissible.

3. Accordingly, a notice of rejection of the application for refund under Rule 92(3) of the CGST Rules, 2017 was issued to the petitioner on 11.12.2020. The petitioner filed reply to the show cause notice on 23.12.2020. However, to the utter surprise of the petitioner, vide the impugned order dated 04.01.2021 passed by the respondent no.3, claim of refund made by the petitioner was rejected. Being aggrieved, the petitioner preferred appeal u/S 107 of the Act of 2017 read with Rule 108 of the CGST Rules, 2017 before the respondent no.2 who also rejected the statutory appeal preferred by the petitioner relying on the Circular No. 157/13/2021-GST dated 20.07.2021 issued by the Central Board of Indirect Taxes and Customs without jurisdiction dehors the provision of Sec 168-A of the Act of 2017.

4. Learned counsel for the petitioner submitted that the Apex Court in the Suo-motu W.P.(Civil) No. 3/2020 – In Re : Cognizance For Extension of Limitation had condoned the delay and held that in cases where the limitation would have expired during the period between 15.03.2020 till 14.03.2021 notwithstanding the actual balance period of limitation remaining all persons shall have limitation period of 90 days from 15.03.2021. In the event the actual balance period of limitation remaining, with effect from 15.03.2021, is greater than 90 days, that longer period shall apply.

5. In view of the aforesaid, the respondent authorities erred in holding that refund application has been filed after two years from the relevant date and, therefore, the same is inadmissible being time barred.

6. Learned counsel for the petitioner contended that respondent no.3 rejected the application only on the ground of application being time barred and did not dwell upon the merits of the application. Hence, in view of the verdict of the Hon’ble Apex Court in respect of the limitation, the order passed by the respondent no.3 cannot be allowed to stand and the matter deserves to be relegated to the respondent no.2 to decide the appeal on merits.

7 . On the other hand, learned counsel Shri Prasanna Prasad appearing for respondent no.2 and 3 fairly admitted the mistake on the part of the respondents and admitted that the Circular No. 157/13/2021 – GST dated 20.07.2021 is not applicable to any other proceedings under the GST Laws except in respect of appeal which is required to be filed before the Joint/Additional Commissioner(Appeals), Commissioner(Appeals), appellate authority. The limitation would not come in the way of the petitioner.

8. In view of the aforesaid, petition stands partly allowed. The impugned order Annexure P-1 dated 24.08.2021 passed by the appellate authority/respondent no.2 is hereby set aside. The matter is remanded back to the appellate authority/respondent no.2 to decide the appeal on merits in accordance with law as expeditiously as possible, preferably within a period of 30 days from the date of receipt of certified copy of the order passed today.

9. It is made clear that this Court has not expressed any opinion on the merits of the case.

No order as to cost.