M/S Mangalore Refinery And Petrochemicals LTD vs. Union Of INDIA - Karnataka High Court, 13 January 2023

Cause title — parties, addresses and appearances

- 1 - WP No. 23995 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF JANUARY, 2023 BEFORE THE HON'BLE MR JUSTICE B M SHYAM PRASAD WRIT PETITION NO. 23995 OF 2022 (T-RES) BETWEEN: M/S MANGALORE REFINERY AND PETROCHEMICALS LTD MANGALURU VIA KATIPALLA KUTHETHOOR DAKSHINA KANNADA-29 575030 (REPRESENTED BY SHRI SANJIB KUMAR MANDAL GM FINANCE UNDER COMPANIES ACT 1956 REGISTRATION NO.008959 DATED 07-03-1988) …PETITIONER (BY SRI. RAVI RAGHAVAN.,ADVOCATE) AND: 1. UNION OF INDIA REPRESENTED BY ITS UNDER SECRETARY, MINISTRY OF FINANCE DEPARTMENT OF REVENUE NORTH BLOCK NEW DELHI-110001 Digitally signed by NARASIMHA MURTHY VANAMALA Location: HIGH COURT OF KARNATAKA - 2 - WP No. 23995 of 2022 2. COMMISSIONER OF CENTRAL TAX NORTH DIVISION, 2ND FLOOR, CENTRAL REVENUE BUILDING, ATTAVAR MANGALORE-575001 3. THE ASSISTANT COMMISSIONER OF CENTRAL TAXES COMMISSIONER OF CENTRAL TAX NORTH DIVISION, 2ND FLOOR, CENTRAL REVENUE BUILDING, ATTAVAR MANGALORE-575001 …RESPONDENTS (BY SMT. PREETHA M., ADVOCATE FOR R1 AND R3; SRI. MADANAN PILLAI, ADVOCATE FOR R2) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED REFUND REJECTION ORDERS BEARING NO.44/2022,45/2022 AND 46/2022 ALL DATED 20.07.2022 IN FORM-GST-RFD-06 PASSED BY THE R3 FOR THE PERIOD FEBRUARY,2018, MARCH, 2018 AND APRIL, 2018 ENCLOSED AT ANNEXURE-A, A1 AND A2 RESPECTIVELY. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING: - 3 - WP No. 23995 of 2022

ORDER

The petitioner’s request for refund for the period from February 2018 to April 2018, is rejected by the third respondent – the Assistant Commissioner of Central Taxes - on the ground of limitation, and the third respondent’s order in this regard reads as under:

“11. I have carefully gone through the subject refund claim along with the documents enclosed, relevant statutory provisions and the submissions made by the claimants in reply to the show cause notice.

The facts of the case already mentioned in detail in the pre paras and therefore I do not wish to repeat the same for sake of brevity. The subject claim before me is filed consequent to the Apex Court's decision on 19.5.2022. The subject claim is related to the IGST paid for the period March 2018. This being the case, the relevant date has to be determined under Sec. 54(14)(2)(h) as under- (2) "relevant date" means- (h) in any other case, the date of payment of tax.

Further, even after exclusion of period from 1st day of March, 2020 to the 28th day of February, 2022 for computation of period of limitation for filing refund application under section 54 or section 55 of the said Act,

- 4 - as provided in the Para 1(iii) of Notification 13/2022-CT dated 5th July, 2022, it is clear that the subject claim is filed after expiry of 2 years from the relevant date. Therefore, I arrive at the conclusion that the claim is hit by limitation of time.”

Sri. Ravi Raghavan, the learned counsel for the petitioner, submits that indeed the Notification dated 15.07.2022 in No.13/2022-CT excludes the period between 01.03.2020 to 28.02.2022 for computing limitation even for the purposes of refund application under Section 54 of the Central Goods and Service Tax Act, 2017 (for short, ‘the CGST Act’). However, this Notification must be read necessarily in conjunction with the orders of the Hon’ble Supreme Court in Cognizance for Extension of Limitation1 where, apart from providing for exclusion during such period, the Hon’ble Supreme Court has also clarified that:

If the limitation expires during the aforesaid period, the limitation period shall be ninety [90] days

1 2022 (56) G.S.T.L. 385 (S.C.)

- 5 - from 01.03.2022, and in the event, the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than ninety [90] days, that longer period shall apply.

Sri. Ravi Raghavan submits that the third respondent has not considered the question of limitation in the light of this clarification and if it is considered, there cannot be any dispute that the petitioner’s application for refund would be within the permissible ninety [90] days. Ms. Preetha M., the learned counsel for the contesting respondents, does not dispute this material factual assertion but contends that the petitioner, even when the application is rejected on the ground of limitation, can avail alternative remedy.

It is trite that alternative remedy itself is no reason to reject a writ petition when it can be shown that the impugned orders are ex facie contrary to the settled propositions, including positive directions by the higher Courts. If it is undisputed that the limitation for the

- 6 - petitioner’s subject refund applications expired during the period between 01.03.2020 and 28.02.2022, the petitioner would be entitled for an extended limitation of ninety [90] days from 01.03.2022 and the applications are within this time, this Court is of the considered view that the impugned order sustained.

For the foregoing, the petition is allowed quashing the impugned orders dated 20.07.2022 in Nos.44/2022, 45/2022 and 46/2022 (Annexures – A, A-1 and A-2) by the third respondent and the petitioner’s refund applications are restored for reconsideration. The petitioner shall appear before the respondents without further notice on 14.02.2023. JUDGE