In this petition, petitioner has sought for the following reliefs:
“a. Issue a writ of mandamus, or a writ or order or direction in the nature of writ of mandamus and set aside the Order-In-Appeal No. MYS-YCS-ADC/JC (A)/-33-19-20-GST, dated: 11.02.2020 / 14.02.2020, in Annexure-C as bad in law.
b. Issue a writ of mandamus, or a writ or order or direction in the nature of writ of mandamus by setting aside the Order-In-Appeal No. MYS-YCS-ADC / JC (A) / -33-19-20-GST, dated: 11.02.2020/ 14.02.2020, in Annexure-C and sanctioning the refund with interest.
c. Issue a writ of mandamus, or a writ or order or direction in the nature of writ of mandamus and to hold that the stipulation of lapsing of credit and cut-off date for refund in Notification No.20/2018-CT (Rate) dated 26.07.2018 in Annexure-J is without the authority of law.
d. Issue any other direction or grant any other relief, as deemed fit in the facts and circumstances of this case, in the interest of justice.”
2. Heard learned counsel for the petitioner and learned counsel for the respondents and perused the material on record.
3. Learned counsel for the petitioner submits that petitioner has submitted an application dated 03.04.2019 for refund under Section 54 of the CGST Act, 2017. The said application was processed by the respondents, who rejected the same vide order dated 21.08.2019. Aggrieved by the same, the petitioner preferred an appeal before the Appellate Authority, which was also dismissed vide order dated 11.02.2020. Aggrieved by the orders passed by the adjudicating authority and the impugned order passed by the Appellate Authority, the petitioner is before this Court by way of the present petition.
4. In addition to reiterating the various contentions urged in the memorandum of petition and referring to the documents produced, learned counsel for the petitioner invites my attention to the notification at Annexure – J dated 26.07.2018 issued by the respondents in order to point out that the earlier notification dated 28.06.2017 was amended by not only providing that exclusion of the subject goods of the petitioner, which was found at Sl.No.5 of the Notification dated 28.06.2017 would not apply insofar as the petitioner is concerned, but also in respect of the said goods, the accumulated input tax credit lying unutilised in balance, after payment of tax for and upto the month of July, 2018, on the inward supplies received upto the 31st day of July 2018, shall lapse. It is further pointed out that the said notification was clarified by the respondents by issuing one more Circular at Annexure – K dated 24.08.2018. It is also submitted that along with the refund claim, the petitioner had submitted various documents including the summary of stock as on 31.07.2018 and the stock available with the petitioner, which has been cleared as on 31.07.2018 and that the same was cleared subsequently as certified by the Chartered Accountant. It is the grievance of the petitioner that despite the aforesaid facts and circumstances and the material on record submitted by the petitioner to the respondents, the respondents have proceeded to pass the aforesaid impugned order without considering or appreciating the specific contentions of the petitioner that the stock lying with it was not cleared as on 31.07.2018 and the input tax credit from it would not lapse and consequently, the petitioner would be entitled to refund which has been wrongly rejected by the respondents and as such, the petitioner is before this Court by way of the present petition.
5. In support of his contentions, learned counsel places reliance upon certain documents submitted along with refund claim as well as the following decisions:
(i) Shabnam Petrofils Pvt. Ltd. Vs. Union of India – 2019 (29) G.S.T.L. 225 (Guj.);
(ii) Samtel India Ltd. Vs. Commissioner of Central Excise, Jaipur –2003 (155) E.L.T. 14 (S.C.) &
(iii) Eicher Motors Ltd., Vs. Union of India – 1999 (106) E.L.T. 3 (S.C.)
6. It is further submitted that though the respondents have challenged the order of the High Court of Gujarath before the Apex Court in Shabnam Petrofil’s case supra, the same has not been stayed by the Apex Court and is pending adjudication.
7. Per contra, learned counsel for the respondents would support the impugned order and submit that there is no merit in the petition and that the same is liable to be dismissed.
8. As rightly contended by the learned counsel for the petitioner, it is the specific contention of the petitioner that the input tax credit in relation to the goods that were lying in stock with the petitioner and which were not cleared as on 31.07.2018 would not lapse and that the petitioner would be entitled to refund of the same in view of the notifications and circulars of the respondents, in particular, the Notification dated 26.07.2018 and that the clarified Circular dated 24.08.2018 have not been considered or appreciated by the respondents in their proper perspective, which has resulted in erroneous conclusion in rejecting the refund claim of the petitioner. It is also seen that the respondent No.1, which passed the Order-in-original has declined to follow the judgment of the High Court of Gujarath in Shabnam Petrofil’s case without assigning any cogent or valid reasons in this regard. It is also significant to note that the petitioner has produced all relevant documents along with the claim for refund including documents produced in the present petition comprising of details of stock, Chartered Accountant Report, etc., for the purpose of establishing that the stock was available with the petitioner and the same was not cleared as on 31.07.2018.
9. Under these circumstances, I am of the considered opinion that the impugned order passed by the adjudicating authority and the impugned order passed by the Appellate Authority without taking into account or properly or correctly considering or appreciating the material on record comprising of pleadings and documents of the petitioner and notifications, Circulars, etc., as well as the judgment relied upon by the petitioner is clearly unreasoned and the same deserves to be set aside and the matter remitted back to the respondent No.4 for reconsideration afresh in accordance with law.
10. In the result, I pass the following:
(i) Petition is hereby allowed.
(ii) Impugned order at Annexure – C dated 11.02.2020 passed by the Appellate Authority and the order at Annexure – B dated 21.08.2019 are hereby set aside.
(iii) Matter is remitted back to respondent No.4 / adjudicating authority for reconsideration of the claim for refund put forth by the petitioner bearing in mind the pleadings, documents, judgments, etc., relied upon by the petitioner and the observations made in this order and in accordance with law as expeditiously as possible and at any rate within a period of three months from the date of receipt of a copy of this order.
(iv) Liberty is reserved in favour of the petitioner to produce additional pleadings, documents, etc., before respondent No.4, who shall consider and proceed further in accordance with law.