Order Date – 22 January 2024

Parties: M/s.Tulip Nilgiris Exports Pvt. Ltd. Vs Additional Commissioner of Central Taxes and Central Excise (Appeals), The Assistant Commissioner of Central Taxes and Central Excise

Facts –

• The Petitioner, M/s.Tulip Nilgiris Exports Pvt. Ltd., is an exporter of processed tea and had availed of ITC in respect of the procurement of tea from the local market.
• While While claiming refund, the petitioner miscalculated by considering the ITC attributable to the exports made in the month instead of  the total ITC availed of in the tax period. While claiming refund in the month of June 2018, the petitioner sought additional refunds for May 2018 and July 2017 to November 2017, but only the June 2018 claim was accepted.

Issue –

• Whether the petitioner is entitled to refund?

Order – 

• The Single Bench of Hon’ble High Court observed that Section 54(1) of the CGST Act provides that a refund claim may be made before the expiry of two years from the relevant date. Such relevant date is required to be computed from the date of export of the goods concerned by any mode. Since the refund claim pertains to exports made between July 2017 and November 2017 and the refund application was filed on 09.01.2019, it is clear that such refund application was made within two years from the relevant date.
• Thus, the refund claim of the petitioner was made within the period of limitation prescribed by statute. As regards the entitlement of the petitioner to refund, such entitlement has to be determined not only with reference to Section 54 of the CGST Act read with Rule 89 thereof, but also by examining relevant documents relating to untilised ITC and exports. This exercise cannot be undertaken in exercise of discretionary jurisdiction under Article 226 of the Constitution of India.
• The appellate authority concluded that the refund claim can only be made with regard to a specific calendar month. This conclusion is contrary both to statutory prescription and Circular No.37. Therefore, the order impugned is unsustainable and is hereby quashed. However, it does not follow from the conclusion that the refund claim is within the time limit specified by statute that the petitioner is entitled to refund. Such entitlement should be established by the petitioner with reference to relevant documents and applicable provisions.
• Hence the matter is remanded back and the writ petition is disposed of.