1. The petitioners before this Court under Article 226 of the Constitution of India challenging inaction on the part of the respondents with the following prayers.

a) this Hon’ble Court be pleased to issue a writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ, order or direction directing the Respondents to disburse the refund amount of ₹ 50,88,42,582/- to the Petitioner No.1 forthwith;

b) this Hon’ble Court be pleased to issue a writ of Mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the Respondents to disburse interest on the refund amount of ₹ 50,88,42,582/- to the Petitioner No.1 in terms of Section 56 of the CGST Act forthwith;

c) this Hon’ble Court be pleased to direct disbursement of the amount of refund sanctioned along with interest pending the disposal of the present petition;

d) for ad-interim relief in terms of clause (c) above;

e) for costs of the Petition be provided for;

AND

f) for such further and other reliefs, as this Hon’ble Court may deem fit and proper in the nature and circumstances of the case may require;

2. This Court, at the time of issuance of notice on 09.09.2021, has passed the following order.

1. The petitioner seeking writ of mandamus for disbursement of the refund amount of ₹ 50,88,42,582/- sanctioned to the petitioner no.1 vide order dated 5th August, 2020 passed by the Deputy Commissioner of Central GST, Division-2 along with the applicable interest under Section 56 of the Central Goods & Service Tax Act, 2017.

2. The petitioner has a grievance that the respondent no.3 though has sanctioned the refund, the amount has not as yet been disbursed after the expiry of one year from the date of sanction. No reply also has been given to even any of the communication, which has been sent by the petitioner in this regard.

3. We have heard Ms. Dimple Gohil, learned advocate for the petitioner. She has confirmed non-receipt of any reply to the communications sent for getting the refund. However, she submits that the challenge has also been made to the said order by the respondent authority. There has been no stay granted by any of the authority against the order, which is sought to be implemented by way of writ of mandamus.

4. Issue Notice returnable on 23 rd September, 2021. Mr. Lodha, learned Senior Standing Counsel waives service of notice on behalf of the respondent nos.1 and 2. In addition to the regular mode of service, Respondent no.3 be served through speed post also at the costs of the petitioner.

3. Affidavit-in-reply is filed by the Principal Commissioner, Rajkot where it does not dispute that the Refund Sanction Order dated 05.08.2020 has been issued in favour of the petitioners on the basis of judgment of this Court dated 23.01.2020 passed in the case of M/s.Mohit Minerals Pvt. Ltd. Vs. Union of India in Special Civil Application No.726 of 2018 and ordered to credit sum of ₹ 50,88,42,582/- in favour of the petitioner and ₹ 39,05,121/- towards the Consumer Welfare Fund.

3.1 According to the respondents, the Refund Sanction Order (RED-06) was issued online on 05.08.2020 through system. As this needed bifurcation, due to non-availability of such an option in Form RFD-05 in the system, sanctioned amount could not be credited to the petitioner as well as the Consumer Welfare Fund.

3.2 It is further contended that the refund amount which was to be disbursed in favour of the petitioner could not be done on account of the limitation of software system and CGST Head Quarter, Rajkot had taken up the issue with the Joint Commissioner, PCCO, Central GST, Ahmedabad vide letter dated 10.12.2020 who in turn had also taken up the issue with the Director General, System, Chennai, Kolkata / Delhi vide letter dated 04.02.2021.

3.3 Further, the Director General, System, Chennai vide email dated 28.04.2021 has informed that the functionality to credit the sanctioned amount fully/partially to Consumer Welfare Fund is under development and will be deployed in online refund module at the earliest. Till that time, it was advised to keep the sanction order pending for all the refund application for such categories which required to credit a part of the amount to the Consumer Welfare Fund. However, till date there is no functionality available. This technical glitch is the reason for non-payment. The provisional refund in terms of Rule 91 of the CGST Rules is not viable as no order regarding provisional disbursement had been issued. The whole amount was sanctioned in a single order. The request of the payment of the entire amount with a payment of ₹ 39,05,121/- to the Consumer Welfare fund is not viable and system would not allow any amount to be transferred to the bank account of the petitioner other than what has been mentioned in the Refund Order (RFD- 06). There is no module available for allowing any amount to be credited to the bank account of the petitioner and the Consumer Welfare Fund. In these circumstances, it is urged that the last reminder that has been sent through email on 26.09.2021 which is not visible to it.

3.4 With regard to the demand of interest from the application dated 10.06.2020 under Section 56 of the Central Goods and Service Tax Act, 2017, it is urged in para-11 of the affidavit, which reads as under:-

“if any tax ordered to be refunded is not refunded within 60 days of the date of receipt of application, interest at the rate of 6 percent (notified vide Notification No.13/2017 – Central Tax dated 28.06.2017) on the refund amount starting from the date immediately after expiry of sixty days from the date of receipt of application (ARN) till the date of refund of such tax shall have to be paid to the applicant. It may be noted that any tax shall be considered to have been refunded only when the amount has been credited to the bank account of the applicant. “Therefore, interest will be calculated starting from the date immediately after the expiry of sixty days from the date of receipt of the application till the date on which the amount is credited to the bank account of the applicant”. Accordingly, the petitioner will be admissible for interest on refund amount of ₹ 50,88,42,582/- from the date of expiry of sixty dates from the date of receipt of the application i.e. 10.06.2020.”

It is emphasized that the amount is not withheld but not parted with due to technical glitch.

4. We have heard learned advocates appearing on behalf of both the sides. We have also considered the written submission placed on record before us. On substantive part, there is no adjudication which is necessary as the respondent – authority agrees to credit the amount of ₹ 50,88,42,582/- in account of the petitioner and sum of ₹ 39,05,121/- in the account of the Consumer Welfare Fund by issuance of payment advice RFD-05. The technical glitch of there being no such module available in the software created for this purpose is the reason for nonpayment. The Court notices that the refund order has been passed on 05.08.2021. The circular No.125/44/2019-GST dated 18.11.2019 specifies that the tax order of refund if not refunded within 60 days, the interest at the rate of 6% on the refund amount starting from the date immediately after expiry of 60 days from the date of receipt of the application till the date of refund is to be paid. It is in consonance with Section 56 of the CGST Act.

5. Learned advocate Ms.Dimple Gohil for the petitioners submits that more than year’s time has passed and yet, the issue has not been resolved at the end of the team of the software engineering, who may look after this aspect.

6. According to the learned senior Standing Counsel Mr.Priyank Lodha, there is a need for further time as various authorities are working on this issue, however, the software is presently not being implemented.

7. Considering the fact that this non-attendance of the issue has resulted into not only the non-payment of the refund amount which is otherwise not being disputed by the respondents, but has caused hardship for the petitioner and many others who for no fault of theirs are suffering. Payment of interest on late payment can never furnish the reason to delay payment, the four weeks time is granted to resolve the issue, if need be felt for outsourcing by the authority concerned for taking assistance of experts on the part of the software engineers, let that also be taken for attending to this issue.

8. The authority concerned may also consider of taking in advance, the amount of ₹ 39,05,121/- from the petitioner of the sum of the Welfare Fund and making the payment to the amount of ₹ 51,27,47,703/- to the petitioner is entirety, if that can act as a solution before the software is improvised. However, if nothing materializes, let the amount be paid at the end of four weeks to the petitioner without fail with interest. If not paid at the end of four weeks, the rate of interest on the sum due shall be 12% on the entire sum from the due date of payment till the actual date of payment. Cost to be the cost is cause.

9. The petition stands disposed of.