section 54 of GST
Case Title | M/s Ayana Pharma Ltd Vs Union of India and ors |
Court | Gujrat High Court |
Honorable Judges | Justice J P Pardiwala |
Citation | 2022 (1) GSTPanacea 281 HC Gujarat CAN 14158 of 2021 |
Judgement Date | 13-Jan-2022 |
Council for Petitioner | Bharat Raichandani |
Council for UOI | Priyank P Lodha |
Council for State | |
Favour | Assesee partially |
Section | 54, 168,2,14,3 and 16 of CGST and IGST Act,2017. |
The Gujrat High Court bench of Honourable Judge Justice J P Pardiwala has held that treat the manual refund application filed by the petitioner firm in the light of section 54 and Rule 89 of IGST Act, Rules respectivel.y
FACTS OF THE CASE
The company is situated with Jerusalem and having business activities through its authorized agent in India. The company is engaged in the business of buying and selling,mfg. of pharma products. The company is engaging a development of Liposomal Therapeutics for the treatment of cancer. And in order to clinical research the petitioner company outsource such work to third parties.
The clinical research company provided services to petitioner and charging GST @18% respectively. The dispute here is whether this service is qualify to be treated as export services in terms of Section 2(6) of CGST Act,2017.
On enquiry with the LTRL, the writ applicant was informed that the IGST levied and collected has been deposited with the Government Treasury / Exchequer. The LTRL further confirmed that neither they have claimed / filed any refund application nor received the refund from the Government of the disputed amount. It is in the aforesaid set of circumstances, that the writ applicant has filed a claim for refund of manually on 01.08.2020 in accordance with the provisions of Section 54 of the CGST Act, 2017
It appears that such claim came to be rejected by the Deputy State Tax Commissioner vide communication dated 02.12.2020 in absolute ignorance of the provisions of the Act, 2017 on the ground that the writ applicant could not have filed the application manually.
The council of petitioner also gave the reference of the case Laxmi Organic Industries Ltd vs Union of India.
As per the council , the bare reading of Section 54 of GST described that it is only the person who has actually paid the tax can make application of refund for the same.
section 54 of GST
COURT HELD
In terms of section 2 of IGST , it is seen that ‘export of services’ means the supply of any service when the supplier of service is located in India; the recipient of service is located outside India; the place of supply of service is outside India; payment for such service has been received by the supplier of service in convertible foreign exchange; and the supplier of service and the recipient of service are not merely establishments of a distinct person.
We further direct the Deputy State Tax Commissioner to treat the manual application dated 01.09.2020 as an application for refund. The respondents are
further directed to permit the writ applicant to furnish it’s stance to any objections, before the same is relied upon by the respondent authority, by providing sufficient opportunity to produce supporting documents and also to provide opportunity of hearing to the writ applicant. If any such documents are relied upon, it is expected of respondent to deal with such submissions and passed reasoned order. (3) The respondent are directed to decide and process the application of refund, by keeping in mind the observations made by this Court. Any order which may be passed on the refund application may be communicated to the writ applicant.
The respondent shall undertake such exercise within period of eight weeks from the date of receipt of writ of this Order
section 54 of GST
The authority cannot solely have right to reject the application of refund without stating the proper cause in the light of provisions of Act precisely.
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