M/s Golden Food Products India, Ghaziabad Vs Assistant Commissioner, CGST (OIA dated 31-03-2022)

Advocate for Appellant: Advocate Madhukar Gupta

Brief Facts of the Case:  The appellant is registered with the GST Department and is engaged in wholesale / Distributor Business of Flsh, Dried, Salted or in Brine, Smoked fish etc, Buttter milk, curdled milk and cream, Yogurt, Kephir and other fermented or acidified milk & Cream etc. The appellant applied for refund dated 18-10-2021 of ITC accumulated on account of Export of Goods & Services without payment of tax for the period of April, 2019 to June, 2019 for Rs. 4,29,280.00 under Section 54 of CGST Act, 2017. The Assistant Commissioner issued a SCN dated 29-11-2021 called upon the taxpayer as to why their refund claim should not be rejected for reasons "time barred" and rejected the same on 21-12-2021 being barred by the limitation of time period of two years. Consequently, the taxpayer appealed before the appellate authority for refund.  Hon’ble Commissioner (Appeals) CGST decided the appeal in favor of the Appellant by stating that “

The appellant has also relied upon the judgement of Hon'ble Supreme Court ln Writ Petition (Civil No. 03 of 2020 regarding extension of date after the period of limitation where it is directed that the period from 15-03-2020 till 28-02-2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings. The appellant has also submitted the case in Writ Tax No. 173 of 2022 decided on 03-03-2022 by the Allahabad High Court ln the case of GAMMA GMNA LIMITED VERSUS UNION OF INDIA AND OTHERS, where the Hon'ble Court clarified that as the Hon'ble Supreme Court due to the prevailing situation on account of the Covid-19 pandemic has passed orders that the period from 15-03-2020 till 28-02-2022 shall stand excluded ln computing the periods prescribed under Sections 23(4 ) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable instruments Act 1881 and any other laws which prescribes period of limitation for instituting proceeding. Outer limits (within which the court or tribunal can condone delay ) and limitation of proceedings" and ordered that the refund application of the petitioner could not have been rejected on the grounds of delay, ignoring the said order of Supreme Court and remitted back the matter to decide the refund application ln accordance with law, by reasoned and speaking order. The appellant has also relied upon the Judgement of Hon'ble Bombay High Court in case of in the case of Saiher Supply Chain Consulting Pvt. Ltd. Vs Union of India in WP(L) No. 1275 of 2021. (2022 134 taxmann.com 154 (Bombay) [10-01-20221]) and Hon'ble High Court of Madras in the case of GNC Infra LLP Vs. Assistant Commissioner ([2021 133 taxmann.com 200 (Madras)).  ln view of above, It is found that the impugned order is a non-speaking order and therefore it will be appropriate that the matter ls remanded to the refund sanctioning authority to pass order on all technical issues, taking into consideration of Orders of Hon'ble Supreme Court dated 10-01-2022 and Hon'ble High Court dated 03-03-2022 and after taking decision on the basis of above orders. (in favour of Appellant).