M/S Appario Retail Private Limited vs. The Union Of INDIA

The petitioner would further contend that upon effecting the sale through the e-platform of ECO, the consideration is received by the ECO from the customers and is remitted to the petitioner thereafter.

The ECO, before remitting the amount for the supply of goods effected through it to customers, retains a percentage of amount from and out of such consideration received and deposits such amount retained by the ECO with the Government in terms of section 52 0f the cGST Act as 'Collection of tax at source,; and that the such deposit of amount made by the ECo with the Government is arowed to be craimed as credit by the petitioner in the erectronic cash ledger of the petitioner, on the basis of the statement filed by ECO in Form GSTR_g in terms of Rule 67 of the Central Goods and Services Tax Rules, ZOIT (for short, ,the CGST. Rules').

The petitioner also contends that due to maintenance of huge inventory on account of purchases affected to meet the forecasted demand, the petitioner invariably has excess balance of ITC in its electronic credit ledger, which is utilized for discharge of GST liability, as and when sale of goods is effected through ECO, and therefore, the amount retained by the ECO and deposited with the Government under Section 52 of the CGST Act, as tax collected at source and reflected in petitioner's electronic cash ledger remains unutilized; that the said unutilized balance in the petitioner's electronic cash ledger can be claimed as refund in terms of Section 49(6) read with Section 54 of the CGST Act; and that the said balance amount in the electronic cash ledger is being refunded to the petitioner throughout India where it has operations, including in the State of Telangana.

It is further contended that the electronic cash ledger of the petitioner maintained on the GST poftal is akin to e-wallet, where the e-valet holder keeps its money to be appropriated against a specific

The petitioner contends that as the balance in electronic cash ledger was being refunded to it previously' even in respect of period October, 2018, the petitioner flled refund claim in Form CGST RFD-01A on the period October, 2018' of the excess balance electronic cash ledger of Rs'1'17'29'989/- (IGST of Rs.73,08,531/-, CGST of Rs'22,10'7291- and SGST of Rs'22'L0'7291-) in terms of Section 54 of the CGST Act read with Rule 89 of the CGST Rules; that the said refund application was adjudicated by the 5th respondent and a refund sanction order was passed granting refund of entire amount claimed as per refund application vide order No'RFD CGST 2812019 20.05.2019 for accumulated in dt.18.09.2019. B.Thepetitionercontendsthat,uponthe5threspondentsanctioning the refund of excess amount available in the electronic cash ledger' the 3d respondent examined the said refund sanction order dt.18.09.2019 and passed review order dt.09'06.2020 observing that the refund was sanctioned without examining whether the principle of "unjust enrichment.,has been complied with as required under Section 54(5) read withSection54(B)oftheCGSTAct,andtheimpugnedrefundSanction orderislegallyimproper,andauthorizedtheadjudicatingauthorityfor filinganappealbeforetheCommissionerasprovidedUndertheCGSTAct. g.Itiscontendedthatbasedonthesaidauthorizationgrantedbythe 3'd respondent, the 5th respondent, who initially passed the refund sanction order, filed an appeal before the 4th respondent on 24'06'2020; that upon filing of the said appeal by the 5th respondent, the petitioner filed Memorandum of cross objections on 19.10.2020 contending that the 5

The petitioner also contends that the CBIC, vide Circular NI.125144120L9/GST, dt,18.11.2019, has clarified that refund of excess balance in electronic cash ledger arising on account of TCS can be claimed under the category of'refund of excess balance in electronic cash ledger' and that a CA certificate was also furnished in terms of Rule B9(2)(n) of the CGST Rules, in support of the fact that incidence of amount paid and claimed as refund, i.e. TCS, credited to electronic cash ledger, has not been passed to any other Person'

The petitioner further contends that the 4th respondent' after granting personal hearing on 23.10.2020 passed the impugned Order-in- Appeal setting aside the refund sanction order dt'18'09'2019 and rejected the refund claim.

The 4th respondent, by the impugned Order-in-Appeal' has held that there is no provision under Section 54(1) for refund of TCS under deposited Section 52 of the CGST Act; that the Circular dt'18'11'2019 allows refund of TCS - TDS, only when the same has been erroneously deposited in excess, under wrong head; that as the case of the petitioner is not an erroneous deposit in excess under wrong head' refund would not be admissible, that the Frequently Asked Questions (FAQS) issued by the CBIC are not binding on the Appellate Authority' and that there is a remedy of further appeal before the 2nd respondent'

The petitioner contends that' though the impugned Order-in-Appeal can be appealed before the Hon'ble Goods and Service Tax Appellate Tribunal, the said Appellate authority has not been constituted in the State of Telangana, as on date, even though more than three years.have passedbyaftertheintroductionofGsTwitheffectfrom0l.0T.20lT. Thus,itisclaimedthatthepetitionerisinvokingtheextraordinary juri iction of this Couft under Article 226 of the Constitution of India, assailing the correctness of the impugned order-in-appeal passed by the 4th respondent.

Counter affidavit deposed to by the 3'd respondent on behalf of the respondents 1,3, 4 and 5 has been filed.

By the said counter-affidavit filed, the respondents contend that the present writ petition is not maintainable, inasmuch as there is an effective remedy of appeal before the Appellate Tribunal provided under Section 109 of the CGST Act; that though the regional GST Tribunal has not been established as on date, by virtue of the order issued by CBIC, vide order No.9/2019-Central Tax dt.03.12.2019, the three months period for filing of appeal has to be considered from the date of communication of the order or the date on which the President or the State president, as the case may be, of the Appellate Tribunal, after its constitution under Section 109 of the CGST Act, enters office; that the CBIC by its Circular No.L32l2/2020_ GST dt.18.03.2020 further clarified the issue of filing appeal before the Appellate Tribunal; that the time limit to make application to the Appellate Tribunal will be counted from the date on which the president or the state President enters the office and that the appellate authority may dispose of all the pending appeals expeditiously without waiting for the constitution of the Appellate Tribunal. 7

The respondents would contend that the answer provided to Question No.24 of FAQs also spec!fies that the refund is to be in accordance with the provisions of Section 54(1) of the CGST Act' which applies only to the amount paid by a claimant into the electronic cash ledger, but not the amount which has been deducted and deposited by ECO, and therefore, the clarification in the form of answer to Question N0.24 of FAQs is not applicable to the petitioner'

The respondents also seek to rely on the extension of limitation granted by the Hon'ble Supreme Court' vide order dt'23'03'2020' in suo motu WrilPetition (Civil) No'3 of 2020' to contend that the appeal flled before the 4h respondent was in time and not hit by limitation'

We have taken note of the contentions urged by the respective paties,

Before adverting to the contentions urged before us' it is necessary to note the relevant provisions under the CGST Act'

Chapter I is the Preliminary chapter and under Section to definitions are provided. Section 2(21) defines'central tax'; Section 2(43) deflnes 'electronic cash ledger'; Section 2(46) defines 'electronic credit ledger'; Section 2(84) defines the'person'and includes 14 categories who are considered as 'person'; Section 2(94) defines'a registered person'; Section 2(107) defines 'a taxable person'.

Chapter X deals with Payment of Tax. Section 49 deals with payment of tax, interest, penalty, fee or any other amounts; Section 51 deals with'Tax deduction at source'; Section 52 deals with 'Collection of tax at source'.

Chapter XI deals with Refunds. Section 54 :hereof deals with 'refund of tax'.

The'electronic cash ledger'as defined in Section 2$3) of the CGST Act makes a reference to the electronic cash ledger referred to in sub-

Chapter III deals with Levy and collection of Tax. Section 9 thereunder is the charging section which authorizes the levy and collection of tax called 'Central Goods and Services Tax'.

Thus, a reading of Section 49(1) of the CGST Act would indicate that it is not only the person in whose name the electronic cash ledger is maintained, but also other person can make deposits into the electronic cash ledger. This would be evident from the language used in Section 49(1), as while allowing deposit, reference is made to'by a person', and while giving credit to the electronic cash ledger, the word used is'such person'. If the intent of the section is to allow the deposit only by the person in whose name the Electronic Cash Ledger is maintained, the same could have been mentioned by using the words like 'of the said person' or by stating "his electronic cash ledger maintained'. Alternatively, the Section I0 28' A reading of the above provision indicates that every deposit made towards tax, interest, penalty, fee or any other amount using any of the mode of payment stands credited to the erectronic cash redger of such person to be maintained. In order to make deposit towards any of the amount specified, the Section 49(1) of the CGST Act does not mandate such payment to be made only by the person in whose name such electronic ledger is maintained. On the other hand, Section 49 allows a person to deposit the sums into the electronic cash ledger of another person, subject to such conditions and restrictions as may be prescribed.

The use of the term 'by a person' for making deposit has to be given a wider meaning having regard to the definition of 'person' defined 2(84) of the CGST Act' On the other hand' the use of word'suc#' which is qualified by the use of words'shall be credited to the electronic cash ledger of SUch erson to be maintained'connotes a different and restrictive meaning, implying the person in whose name the Electronic cash Ledger is maintained and credit is to be given' The above said position of law is also not disputed by the respondents in the counter affidavit filed. 3l,Further,Section52ofCGSTActdealswith'collectionoftaxat source,andmandateseveryECotocollectanamountcalculatedatsuch rate not exceeding one per cent, as may be notified by the Government on the recommendations of the Council, of the net value of taxable suppliesmadethroughitbyothersupplierswheretheconsiderationwith respecttosuchSuppliesistobecollectedbytheoperator.Section52(3) thereof mandates that the amount so collected by the ECO of the net value of taxable supplies made through it to be paid to the Government within ten days after the end of the month in which such collection is made. Sub-sections (4) and (5) of Section 52 of the CGST Act mandates such ECo to flle monthly and annual statements electronically providing thedetailsofoutwardsupplieseffectedthroughitandtheamount collected under sub-section (1) during the month and financial year'

In the normal course of business, ECO would be required to remit to the supplier the consideration received by it, but for the provisions of Section52(1)oftheCGSTAct.Thus,itisbyvirtueofoperationoflaw,

In the counter affidavit filed the respondents have taken a stand that the collection of amount by the ECO from the net value of taxable supplies under Section 52(1) is not a 'tax', as what is specified is the deduction of 'amount' and deposit with the government' However, we cannotlosesightofthefactthatthecollectionSopermittedunderSection 52 is speclfied in Chapter X dealing with 'Payment of Tax'and the heading of Section 52 also deals with'Collection of tax at source'' Further' it is also to be noted that Section 9 of the CGST Act is the charging section providing for levy and collection of tax called as 'central goods and services tax'. If the contention of the respondents that the said amount collected under Section 52 is not a 'tax', then such collection would have to be treated as without authority of law, if the same does not paftake the character of 'tax', which is only permitted to be levied and collected by the charging Section i'e. Section 9 of the CGST Act'

Further, it is also to be noted that the said submission of the respondents is without taking note of the Chapter and the Section under which it is collected where such collection is defined as a'tax" Therefore' the submission of the respondents on this ground has to fail'

Once it is held that the amount collected by ECO and paid to the Government under section 52(3) of the GGST Act is tax to which the supplier is entitled to take credit in his electronic cash ledger under sub- section (7) of Section 52, the provisions of Section 54 of CGST Act would apply for claiming refund of the same' 36.BytheCounteraffidavitfiled,therespondentscontendthatrefund under Section 54 of the CGST Act is permitted in respect of the amounts paid only by the petitioner. As the balance in Electronic Cash Ledger is on account of deposit made by the ECO, the petitioner is not entitled to claim refund of the balance since, it has not been deposited by the petitioner.

In order to appreciate the said contention urged, it is necessary to reFer to Section 54 of the CGST Act, reading as - (1) Any person clainlng refund of any tax and interest, if any, paid on such tax or any other amount oaid bv him, may make an appllcation before the expiry of tvvo years from the relevant date in such form and manner as may be prescribed: Provided that a registered person, claiming refund of any balance in the electronic cash ledger in accordance with the provisions of sub- section (6) of section 49, may claim such refund in the return furnished under section 39 in such manner as may be prescribed.

The Section 54(1) of the CGST Act, is in two parts.

Sub-section (1) of Section 54 deals with refund of tax and interest, if any, paid on such tax or any other amount paid by him by making an application before expiry of two years from the relevant date. The claim for refund contemplated under sub-section (1) is in respect of tax paid on outward supplies or such refund arising on account oF dispute relating either rate of tax or exemption or pre-deposit. Thus, under sub-section (1)

On the other hand, the proviso to sub-section (1) of Section 54 of the CGST Act covers the second category of refund to be claimed by a registered person of any balance in the electronic cash ledger in accordance with the provisions of sub-section (6) of section 4g. Under the proviso, there is no reference either,tax, interest, if any, paid on such tax, or any other amount, or "paid by him,,. It merely refers to a registered pers.n claiming refund of barance in Erectronic cash Ledger and nothing more. Thus, the refund under the proviso can be claimed (i) only by a 'registered person'as deflned under Section 2(94) of the CGST Act, (ii) of the balance in the electronic cash ledger.

Therefore, the Section 54(1) covers two different classes of persons who can claim refund namely i) any'person'and ii) 'registered person'. Similarly it also covers tvvo difFerent types of refunds namely i) tax, interest of any other amount and ii) balance in electronic cash ledger.

The petitioner is covered by class of person specified in (ii) and the refund claimed is also under (ii) type of refund specified above.

The balance amount in the electronic cash ledger till it is appropriated by making payment towards discharge of liabllity of tax, interest or any other amount to the Government, would be the amount available to the'registered person'in whose name the said electronic cash ledger is maintained. Therefore, the stand of the respondents that since the amount collected by ECO under Section 52 of the CGST Act is not paid by the petitioner by himself and therefore, it is not entitled to claim refund of the same, in our view, is totally misplaced. As the petitioner is claiming

The above clariflcation provided by the CBIC in the form of question and answer, in our view, leaves no doubt as to the entitlement of the petitioner to claim refund of the excess balance in its electronic cash ledger, which includes the amount that has been collected by the ECO under section 52 of the GGST Act from the net value of consideration payable to the petitioner in respect of sales/supplies effected through it, as such amount paid to the Government is allowed as a credit in the electronic cash ledger of the petitioner under Section 49(1) of the CGST W.P.No.12183 oJ 2021 Act and such balance being eligible for refund under Section 49(6) of the CGST Act. Therefore, the petitioner is entitled to clalm refund of the balance in electronic cash ledger under proviso to sub-section (1) of Section 54 of the CGST Act.

It is also the stand of the 4th respondent that the said clarification provided by the CBIC does not bind the said authority discharging quasi- judicial functions under the CGST Act.

Before accepting the said plea urged, it is to be seen that the impugned order came to be passed on an appeal filed by the 5th respondent on the basis of the authorization issued by the 3'd respondent. It is not disputed that the circular/clarification/instructions issued by the CBIC in exercise of powers under Section 168 of the CGST Act, binds the 3'd respondent. Thus, if the clarification issued by CBIC binds the 3'd respondent, the same ought to have been followed while examining the correctness of the refund sanction order and before issuing authorization to file appeal thereagainst.

Though the 4th respondent has taken a stand that clarification issued by the CBIC does not bind the said authority, being an appellate authority, he ignored the Fact that he is otherwise duty bound to examine the correctness or otherwise of the grounds in the appeal filed including the authorization issued by the 3'd respondent for filing the said appeal, contrary to the clarification issued by the CBIC.

The non-consideration of the said issue by the 4s respondent, in our view, is perverse, to say the least, as the basis of the 3'd respondent issuing the authorization for filing of appeal, itself is contrary to the clarification issued by the CBIC. It is settled position of law that the t7 t,tsR,J & TVK,J t'/.P.No.1218j of 2021 circulars/ instructions/clarifications issued by the board binds all the authorities under the Act, as has been held by the Hon'ble Supreme Court in Commissioner of Custom, Calcutta and Others V/s. Indian Oil Corporation Ltd,, and Anothel.

Further, on the view taken by us, as to the eligibility and entitlement of the petitioner to seek refund of excess balance in electronic cash ledger, is also supported by a decision rendered by the Kerala High Couft in M/s. Royale Edible Company V/s. Union of India and otherl, wherein the Kerala High Court also took similar view and directed the respondents therein to ascenain the excess amount lying to the credit of the petitioner in its electronic cash ledger, and after making provision for any known and determined llability of the petitioner towards tax, interest, penalty or other amounts under the Act directed the 2nd respondent to refund the said excess amount to the petitioner.

Now, turning to the issue of maintainability of the writ petition, though an effective remedy of appeal to the Appellate Tribunal is provided under Section 109 of the CGST Act, it is an admitted fact that the said Tribunal has not yet been constituted, though more than 3 years have elapsed.after the CGST Act has been introduced. Thus, the petitioner cannot be compelled to wait for eternity to agitate its claim seeking refund of the amount to which it is entitled to under the statute and also blocking its funds afFecting its cash flows, merely because of existence of (non functional) alternate forum/remedy on paper, by not invoking the juri iction under Article 226 of the Constitution of India. Fufther, mere existence of alternative remedy is no bar for invoking the juri iction under Article 226 of the Constitution of India, when right to 1 (2004) 3 SCC 488 , 2020-VIL-549 Kerala

Thus, considered from any angle, the impugned Order-in-Appeal passed by the 4th respondent, cannot be held to be a validly passed order for it to be sustained. For the reasons indicated above, the lmpugned Order-in-Appeal is liable to be set aside.

Accordingly, the writ petition is allowed. The impugned Order-in- Appeal No.HYD-GST-RRC-APP-091-20-21 (APP I), dt.29.12.2020, passed by the 4th respondent, is set aside; and it is held that the petitioner is entitled for refund of the balance in electronic cash ledger as claimed in Form CGST RFD-01A, dt.20.05.2019, for the month of October, 2018, in a sum of Rs.1,17,29,989/-(IGST of Rs.73,08,531/-; CGST of Rs.22,10,7291-; and SGST of Rs.22,10,7291-). //// M.MANJULA ASSISTANT REGISTRAR SECTION OFFICER To,

The Under'Secretary, Union of lndia, Ministry of Law, Justice and Company Affairs, New Delhi.

The Secretary, Telangana Advocates Association Library, High Court for the State of Telangana at HYderabad.

One CC to SriG. Prahlad, Advocate [OPUC] 10.One CC to Sri B. Narasimha Sharma, Advocate IOPUC] 11.One CC to Sri Namavarapu Rajeshwar Rao, Assistant Solicitor General loPUcl 12.Two CD Copies 13.One Spare Copy CHR \ +"

Pending miscellaneous petitions, if any, shall stand closed in the light of this final order. No order as to costs.