KUNAL INTERNATIONAL vs UNION OF INDIA & ORS.
$~23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 05.10.2023
+ W.P.(C) 12154/2023 & CM APPL. 47793/2023
KUNAL INTERNATIONAL ….. Petitioner
Through: Ms. Gunjan Riccharia, Adv.
versus
UNION OF INDIA & ORS. ….. Respondents
Through: Mr. Anurag Ojha, SSC with Mr.
Deepak Somani, Adv.
Mr. Jatin Singh, Adv.
CORAM:
HON’BLE MR. JUSTICE VIBHU BAKHRU
HON’BLE MR. JUSTICE AMIT MAHAJAN
VIBHU BAKHRU, J.
1. The petitioner has filed the present petition, inter alia, praying that the directions be issued to respondent no.2 and 3 to disburse the amount of refund as claimed by the petitioner for the period March, 2020.
2. The petitioner had applied for refund of input tax credit (ITC) in respect of the goods exported without payment of tax in the month of March, 2020. The petitioners application for refund was substantially rejected by an order dated 21.09.2020. The petitioner had claimed an amount of ?71,13,806/-. As against the said amount, the Adjudicating Authority sanctioned a refund of ?9,23,957/-. This was because the Adjudicating Authority was of the view that the petitioner had wrongfully availed the ITC of ?1,92,78,267/-.
3. The petitioner appealed the said order before the Appellate Authority by filing an appeal under Section 107 of the Central Goods and Services Tax Act, 2017 (hereafter the CGST Act). The Appellate Authority substantially allowed the said appeal and by an order dated 07.04.2021, directed that the petitioner be refunded an amount of ?61,79,004.20/- and set aside the order substantially rejecting the petitioners claim for refund.
4. The petitioner grievance is that despite succeeding before the Appellate Authority, the respondents have not disbursed the refund.
5. The respondents have filed their counter-affidavit, inter alia, stating that the competent authority has reviewed the Order-in-Appeal dated 07.04.2021 and has directed that the appeal be filed before the Appellate Tribunal. However, the respondents have been unable to file an appeal as the Tribunal has not yet been constituted.
6. Mr. Ojha, learned counsel appearing for the respondents also referred to the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 issued by the Central Government in exercise of the powers under Section 172 of the CGST Act. He submits that in terms of the said order, the time period for filing an appeal before the Appellate Tribunal has been extended to three months or six months, as the case may be, after the President of the Appellate Tribunal enters office.
7. There is a serious controversy as to whether the Central Government in exercise of a power can extend the period of limitation as specified in the statute. However, it is not necessary for this Court to examine the same in this petition. The controversy in this case relates to the reluctance of the respondents to comply with the order passed by the Appellate Authority. Notwithstanding that the respondents may have a right to appeal the order dated 07.04.2021 before the Appellate Tribunal, we are unable to accept that the respondents can ignore the said order and not comply with the same, without a competent authority or court staying the said order.
8. The issue involved in this petition is covered by the earlier decision of this Court in the case of Alex Tour and Travel Private Limited v. Assistant Commissioner, CGST, Division-Janakpuri: Neutral Citation: 2023: DHC: 3303-DB.
9. In view of the above, the present petition is allowed and the respondents are directed to forthwith disburse the refund as sanctioned by the Appellate Authority in terms of the order dated 07.04.2021. It is, however, clarified that this order would not preclude the respondents from availing the statutory remedy against the said order in accordance with the law or seeking consequential orders for recovery of the amount disbursed if the respondents prevail in their remedies.
VIBHU BAKHRU, J
AMIT MAHAJAN, J
OCTOBER 5, 2023/Ch
W.P.(C) No.12154/2023 Page 1 of 1