Orissa High Court
Vedanta Limited vs Union Of India on 4 January, 2023
IN THE HIGH COURT OF ORISSA : CUTTACK.
W.P.(C) No. 33278 of 2020
with
W.P.(C) No. 24499 of 2020
and
W.P.(C) No. 32166 of 2021
(Applications under Article 226/227
of the Constitution of India, 1950)
Vedanta Limited, Jharsuguda ... Petitioner
VERSUS
Union of India
through its Secretary (Revenue)
Ministry of Finance
Department of Revenue
Government of India, New Delhi
and Others ... Opposite parties
Advocates appeared in the case:
For the Petitioner : M/s. Puneet Agrawal and
Prasanta Kumar Nayak,
Advocates
For the Opposite Parties : M/s. Prasanna Kumar Parhi,
Deputy Solicitor General of India
and Radheyshyam Chimanka,
Senior Standing Counsel
(CGST & Central Excise)
WP(C) Nos.33278 of 2020, 24499 of 2020
& 32166 of 2021 Page 1 of 57
CORAM:
THE CHIEF JUSTICE
JUSTICE MURAHARI SRI RAMAN
JUDGMENT
04.01.2023
MURAHARI SRI RAMAN, J.--
1. Craving to question the propriety of Orders dated
13.08.2020, 10.09.2020 and 13.11.2020 passed by Assistant
Commissioner, GST & Central Excise, Jharsuguda Division
returning the applications filed manually claiming supplementary
refund of unutilized input tax credit pertaining to Compensatory
Cess on inputs used in relation to zero-rated supplies made during
the periods September, 2017; October, 2017; November, 2017;
December, 2017; January, 2018; July, 2018 to September, 2018;
and November, 2018 to February, 2020, as computed by the
petitioner unit-wise, it insisted for invocation of Article 226 of the
Constitution of India in W.P.(C) No.33278 of 2022 with the
following prayers:
"In light of the aforementioned submissions, it is
most humbly prayed before this Hon'ble Court that this
Hon'ble Court be pleased to:
(a) Issue appropriate writ, order or
direction to quash and set aside Circular No.
125/44/2019-GST dated 18.11.2019 for being ultra-
vires the parent Act. (Annexure-4); and/or
(b) Issue appropriate writ, order or
direction to set aside impugned order dated
13.08.2020 bearing DIN No.
20200862WK00006A4EB7, impugned order dated
WP(C) Nos.33278 of 2020, 24499 of 2020
10.09.2020 bearing DIN No.
20200962WK00004JIFAA, and impugned order
dated 13.11.2020 bearing DIN No. NIL (Annexure-9
Series); and/or
(c) Issue appropriate writ, order or
direction directing the Respondent CBIC to refrain
from issuing instructions interfering with the quasi-
judicial powers of the adjudicating authorities;
and/or
(d) Issue an appropriate writ, order or
direction to Respondents to allow the supplementary
refund applications (Annexure-8 series) on unit-wise
basis as per Section 16(3) of IGST Act read with
Section 54 of the CGST/SGST Act; and/or
(e) Alternatively, issue appropriate writ,
order, or direction to Respondents to allow Petitioner
to file refund application electronically on common
portal for the periods September 2017 to January
2018, and August 2018, September 2018, November
2018 to February 2020; and/or
(f) Issue appropriate writ, order or
direction to read down Rule 89(4) of CGST/SGST
Rules (Annexure-1); and/ or
(g) Issue appropriate writ, order or
direction to quash Rule 89(4) of CGST/SGST Rules
for being ultra-vires the provisions of parent Act
(Annexure-1); and/or
(h) Issue an appropriate writ, order or
direction to the Respondents to issue the refund of Rs.
137.26 Cr. to the Petitioner, along with interest;
and/or
(i) Issue writ in the nature of mandamus or
any other appropriate writ, order or direction to the
Respondents to forthwith rectify/correct the
functionality on the GSTN portal;
(j) Pass any other order this Hon'ble Court
may deem fit in the interest of justice and equity."
WP(C) Nos.33278 of 2020, 24499 of 2020
1.1. With the similar prayer(s) in W.P.(C) No.24499 of 2020,
the petitioner sought to quash Order dated 10.06.2020 (Annexure-
9) passed by Assistant Commissioner, GST & Central Excise,
Jharsuguda Division returning the application filed manually
claiming supplementary refund of unutilized input tax credit
pertaining to Compensatory Cess on inputs used in relation to
zero-rated supplies made during the periods February, 2018 to
June, 2018, as computed by the petitioner unit-wise.
1.2. The petitioner assailed notice dated 10.09.2021 and
intimation dated 16.09.2021 issued by the Assistant
Commissioner of GST & Central Excise, Jharsuguda Division
extending benefit of personal hearing in the matter of
consideration of application for grant of additional refund of
unutilized input tax credit pertaining to the periods from April-
June, 2020; August, 2020; October-December, 2020; and January,
2021 in W.P.(C) No.32166 of 2021 and made identical prayers as
made in W.P.(C) No. 24499 of 2020 and W.P.(C) No. 33278 of
2022.
1.3. Since questions raised in these three writ petitions are akin,
they are heard analogously and disposed of by this common
Judgment.
Facts of the case:
2. Pleadings contained in the writ petition and averments made
therein adumbrate that the petitioner, a public limited company
engaged in manufacture of aluminium products, having three
WP(C) Nos.33278 of 2020, 24499 of 2020
units-- Aluminium Refinery at Lanjigarh with Captive Power
Plant, Aluminium Smelter at Jharsuguda and Thermal Power Plant
at Jharsuguda-- all situated in Domestic Tariff Area bearing
common GSTIN: 21AACCS7101B1Z8 under the Central Goods
and Service Tax Act, 2017/the Odisha Goods and Service Tax
Act, 2017 (collectively hereinafter referred to as "GST Act"),
claimed to have made exports and supplied output(s) of respective
units to unit located in Special Economic Zone within the State of
Odisha, which has separate registration GSTIN, being treated to
be independent one in terms of Section 25(5) of the GST Act.
2.1. The case of the petitioner-company is that the Jharsuguda
unit using inputs like coal, petroleum coke, calcined alumina and
coal tar pitch to bring out outputs such as aluminium ingots,
aluminium billets and aluminium rods, made export supplies
(zero-rated supplies) and also made supplies to persons located in
Domestic Tariff Area. Likewise, while the Lanjigarh unit utilised
bauxite and coal to manufacture calcined alumina, the Jharsuguda
Power Plant using coal generated electricity and both of them
supplied output to unit located in Special Economic Zone (zero-
rated) as also persons in Domestic Tariff Area. Upon payment of
Compensation Cess on the procurement of coal for use as input,
the petitioner sought for refund of unutilized input tax credit on
account of zero-rated supplies falling within the ambit of Section
16 of the Integrated Goods and Services Tax Act, 2017 (for
brevity, "IGST Act").
WP(C) Nos.33278 of 2020, 24499 of 2020
2.2. As is required under Section 54(3) of the GST Act read
with Rule 89(4) of the Central Goods and Services Tax Rules,
2017/the Odisha Goods and Services Tax Rules, 2017
(collectively be referred to as "GST Rules"), the petitioner applied
for refund of unutilized input tax credit including Compensation
Cess in Form RFD-01 for each month (September, 2017 to
January, 2018; July, 2018 to February, 2020 except October,
2018) in respect of zero-rated supplies made by all the units taken
together.
2.3. Though said refund as claimed was allowed by the authority
concerned, when it computed unit-wise quantum of refund for the
said period(s), it was found that the quantum of refund as allowed
by taking into consideration all the units together was much less
and, therefore, stemming on subsequent Circulars being
No.125/44/2019-GST, dated 18.11.2019 and 128/47/2019-GST,
dated 23.12.2019 read with Rule 97A of the GST Rules, the
petitioner-company manually applied for grant of supplementary
refund by setting up claim on the basis of supplies made unit-wise.
2.4. The Assistant Commissioner, GST & Central Excise,
Jharsuguda Division has refused to entertain such manually
submitted application for grant of supplementary refund. The
reason for return of application so filed is stated to be the
following vide Orders contained in Annexure-9 series to the writ
petition [W.P.(C) No.33278 of 2020]:
WP(C) Nos.33278 of 2020, 24499 of 2020
"The above supplementary refund application made
by your company not appears to be legal and proper on the
following grounds:
1- Para- 8 of Circular 125/44/2019 dated
18.11.2019 provide as
'Applicant, after submitting a
refund application under any of these
categories for certain period, shall not
be subsequently allowed to file a refund
claim under the same category for any
previous period...'
2- Further in para 2.2 of Circular
135/5/2020 dated 31.03.2020; it has been mentioned
that Hon'ble Delhi High Court in Order dated
21.01.2020, in the case of Ms. Pitambra Books Pet
Ltd, vide para 13 of the said order has stayed the
rigour of paragraph 8 of Circular No. 125/44/2019-
GST dated 18.11.2019 and has also directed the
Government to either open the online portal so as to
enable the petitioner to file the tax refund
electronically, or to accept the same manually within
4 weeks from the Order.
3. Accordingly, CBIC, in para 2.5 of
Circular 135/5/2020 dated 31.03.2020, has extended
only the benefit of bunching of refund claims across
the FY for filing of fresh refund claims by the
claimant. The said para read as follows:
'The issue has been examined and
it has been decided to remove the
restriction on clubbing of tax periods
across Financial Years. Accordingly,
circular No. 125/44/2019-GST dated
18.11.2019 stands modified to that
extent i.e. the restriction on bunching of
refund claims across financial years
shall not apply.'
WP(C) Nos.33278 of 2020, 24499 of 2020
4- It is pertinent to mention here that you
have already taken the benefit of refund for the
aforesaid period as mentioned in Table-A appended
hereinbefore and now claiming supplementary refund
on the basis of separate unit wise calculation of the
refund eligibility for the said period and under the
same category, which appears to be not tenable in as
much as the provisions of Section 54 of CGST Act,
2017, do not provide for filing of supplementary
refund claim after filing original refund claim for the
same period. Also Circular 125/44/2019-GST does
not allow for the filing of supplementary refund after
filing refund claim for the same period.
5. Moreover, your company has single
GSTIN i.e. 21AACCS7101B1Z8 for all the aforesaid
3 units and statutory GST Returns such as GSTR 3B,
GSTR 1, GSTR 9 etc. are also filed on consolidate
basis for all the said 3 units together. Hence, filing of
supplementary refund claim considering unit-wise
refund eligibility does not appear to be just and
proper.
6- As per Circular 125/44/2019-GST after
26.09.2019, all the refund claims should be filed
electronically in proper Form RFD-01 w.e.f.
26.09.2019. However, you have not applied the said
supplementary refund application electronically
neither ARN nos. have been generated for the
supplementary refund claims in terms of the above
provision. As the refund application is manually filed
by the party in RFD-01A without generation of ARN
nos., the refund application does not appears to be
proper.
In view of the above facts, the manual refund
applications submitted to this office vide letter no. Nil dated
30.06.2020 is being returned herewith in original for your
further action"
WP(C) Nos.33278 of 2020, 24499 of 2020
2.5. Such refusal to entertain application(s) by the authority
concerned brought the petitioner before this Court seeking
indulgence by way of writ petitions.
The contentions of the counsel for the petitioner:
3. Sri Puneet Agrawal, learned Advocate appearing for the
petitioner submitted that apart from provision contained in Rule
97A, as inserted by virtue of the Central Goods and Services Tax
(Twelfth Amendment) Rules, 2017, which enables claiming
refund of unutilized input tax credit including Compensation Cess
on account of zero-rated supplies falling under Section 16 of the
IGST Act by making application manually, the legal right to such
eligible claim emanates from the modalities specified under
Section 54 read with Rule 89(4).
3.1. It is submitted by the counsel for the petitioner that the
quantum of refund in respect of all the three units having common
GSTIN taken together is less than the quantum of refund
computed by taking into account each individual unit. Such
difference is due to "higher ratio of eligible input tax credit to total
turnover" in Thermal Power Plant-unit in comparison to other
units. Therefore, the authority erred in not entertaining
supplementary refund application(s) which is claimed unit-wise.
3.2. Referring to VKC Footsteps India Pvt. Ltd. Vrs. Union of
India, 2020 (7) TMI 726 (Guj) = (2020) 81 GSTR 66 (Guj) it is
submitted that the Government in the garb of framing rules could
not restrict the effectiveness of the statutory provision conferring
WP(C) Nos.33278 of 2020, 24499 of 2020
right to claim refund of unutilized input tax credit including
Compensation Cess. The authority, therefore, by not entertaining
the claim for supplementary refund by taking into consideration
unit-wise unutilized input tax credit has clearly deviated from
avowed purport of Rule 89.
3.3. Whereas provisions of Section 54 read with Rule 89 do not
prohibit claim of additional/supplementary refund of tax under
same category under which already refund was claimed, the
Circular being No.125/44/2019-GST, dated 18th November, 2019
could not place such restriction as the same is ultra vires said
provisions in view of dicta laid in CCE Vrs. Ratan Melting and
Wire Industries, 2008 (12) STR 416 (SC) = (2008) 13 SCC 1. Mr.
Puneet Agrawal, learned Advocate for the petitioner would urge
that owing to the restriction imposed in Circular No. 125/44/19-
GST, dated 18.11.2019, to the effect that the application for
refund could be filed only by way of electronic mode, being
contrary to Rule 97A of the GST Rules, the petitioner has been
deprived of the benefit of eligible refund of the unutilised input
tax credit for the periods in question computed unit-wise. Further
not allowing it to submit application electronically on the common
GSTN portal for previous period has occasioned the disablement
of the option for filing the refund of unutilized input tax credit.
3.4. Rule 92(3) mandates adherence to the principles of natural
justice and manner provided for therein before denying claim for
refund, which the opposite party No.6-Assistant Commissioner
has failed to comply with.
WP(C) Nos.33278 of 2020, 24499 of 2020
The contentions of the opponent-Revenue:
4. Per contra, Sri Radheyshyam Chimanka, learned Senior
Standing Counsel for the CGST & Central Excise submitted that
in view of the fact that the petitioner-company sought to register
itself under one common GSTIN, in terms of Section 25 of the
GST Act, input tax credit is available to single GSTIN allotted to
all the three units. Therefore, the claim for refund of input tax
credit unit-wise is impermissible, particularly so when the
petitioner had applied and was allowed refund of unutilized input
tax credit taking into consideration the consolidated figures of all
three units.
4.1. The petitioner-company having chosen to retain one single
registration being GSTIN 21AACCS7101B1Z8 for all the three
units in terms of Section 25, furnished consolidated returns in
Form GSTR-3B and Form GSTR-1 as required under Sections 37
and 39 read with Rule 59 coupled with annual return in Form
GSTR-9 under Section 44 read with Rule 80; thereby it claimed
input tax credit for all the three units. It is not disputed that the
unit located at Special Economic Zone has a separate GSTIN.
Therefore, consideration of refund application as submitted by the
petitioner clubbing all these three units for the purpose of zero-
rated supplies made cannot be imputed as infirm in law. The
Assistant Commissioner, GST & Central Excise, Jharsuguda
Division has justification in refusing to entertain the
supplementary refund by changing method of computation, i.e., by
WP(C) Nos.33278 of 2020, 24499 of 2020
taking into account each unit separately while retaining one
single/common GSTIN for all the three units.
4.2. The GST statute recognizes claim of refund in one category
in respect of any tax period identified by the GSTIN in view of
Section 25(4) of the GST Act, the petitioner is, therefore,
precluded from claiming separate treatment for different units for
the purpose of availing benefit of refund of unutilized input tax
credit.
4.3. By referring to paragraph 12.1 of the counter-affidavit filed
by the opposite parties, the learned Senior Standing Counsel
would submit that the petitioner-company filed refund
application(s) by computing unutilized input tax credit including
Compensation Cess in respect of all the three units bearing
common GSTIN which were duly processed and considered by
the Department. The petitioner was, accordingly, granted refund
on the basis of claims lodged. The impugned order reflects the
following fact:
"The refund against the aforesaid ARN Nos. had
already been sanctioned and payment had been made to
you."
However, at a later point of time it has sought to agitate
further claim by way of filing supplementary refund application(s)
treating the three units independent of each other even as they
maintained single GSTIN. Such a course being not countenanced
by any provision provided under the GST Act or the rules framed
WP(C) Nos.33278 of 2020, 24499 of 2020
thereunder, the opposite party No.6-Assistant Commissioner
rightly returned the said supplementary refund application(s).
4.4. Whether refund application filed manually was required to
be considered by the authority concerned as posed by the
petitioner vis-à-vis Circular No.125/44/2019-GST, dated
18.11.2019 does not arise on the facts and in the circumstances of
the case inasmuch as the petitioner-company has prayed for more
refund (supplementary refund) by treating each unit independent
than it claimed originally by furnishing consolidated refund
application(s) in respect of all the three units. The opposite party
No.6-Assistant Commissioner has returned such supplementary
refund application(s) being filed manually as the same is not liable
to be considered in view of provisions contained in Section 54
read with formula prescribed under Rule 89(4) with reference to
claim made under Section 16 of the IGST Act.
Discussions:
5. Undisputed fact from the respective pleading transpired that
the three units of the petitioner-company, namely Lanjigarh-- 2
MTPA Aluminium Refinery and Captive Power Plant; Jharsuguda
1215 MW Captive Power Plant; and Jharsuguda 2400 MW
Thermal Power Plant situated within the State of Odisha, having
single/common GSTIN, claimed refund of unutilized input tax
credit by computing the quantum taking transactions of these three
units together.
WP(C) Nos.33278 of 2020, 24499 of 2020
5.1. These three units bearing single/common GSTIN:
21AACCS7101B1Z8 having exported and supplied output(s) to
Special Economic Zone unit bearing different GSTIN, claimed
zero-rated supply and accordingly, claimed refund of unutilized
input tax credit by making application(s) disclosing consolidated
figures.
5.2. Section 2(23) of the IGST Act defines "zero-rated supply"
by specifying that it shall have meaning assigned to it in Section
16. Section 16 ibid. lays down as follows:
"16. Zero-rated supply.--
(1) "zero-rated supply" means any of the following
supplies of goods or services or both, namely:--
(a) export of goods or services or both; or
(b) supply of goods or services or both to a
Special Economic Zone developer or a Special
Economic Zone unit.
(2) Subject to the provisions of sub-section (5) of Section
17 of the Central Goods and Services Tax Act, credit of
input tax may be availed for making zero-rated supplies,
notwithstanding that such supply may be an exempt supply.
(3) A registered person making zero-rated supply shall
be eligible to claim refund under either of the following
options, namely:--
(a) he may supply goods or services or both under
bond or Letter of Undertaking, subject to such
conditions, safeguards and procedure as may be
prescribed, without payment of integrated tax and
claim refund of unutilised input tax credit; or
WP(C) Nos.33278 of 2020, 24499 of 2020
(b) he may supply goods or services or both,
subject to such conditions, safeguards and procedure
as may be prescribed, on payment of integrated tax
and claim refund of such tax paid on goods or
services or both supplied,
in accordance with the provisions of Section 54 of the
Central Goods and Services Tax Act or the rules made
thereunder"
5.3. Section 54(3) of the GST Act reads as follows:
"(3) Subject to the provisions of sub-section (10), a
registered person may claim refund of any unutilised input
tax credit at the end of any tax period:
Provided that no refund of unutilised input tax credit
shall be allowed in cases other than--
(i) zero-rated supplies made without payment of
tax;
(ii) where the credit has accumulated on account
of rate of tax on inputs being higher than the rate of
tax on output supplies (other than nil rated or fully
exempt supplies), except supplies of goods or services
or both as may be notified by the Government on the
recommendations of the Council:
Provided further that no refund of unutilised input
tax credit shall be allowed in cases where the goods
exported out of India are subjected to export duty:
Provided also that no refund of input tax credit shall
be allowed, if the supplier of goods or services or both
avails of drawback in respect of central tax or claims
refund of the integrated tax paid on such supplies."
5.4. To comprehend the aforesaid provisions with regard to
claim for refund of unutilized input tax credit on account of zero-
WP(C) Nos.33278 of 2020, 24499 of 2020
rated supplies, the following definitions contained in Section 2 of
the GST Act are required to be taken note of:
"(47) "exempt supply" means supply of any goods or
services or both which attracts nil rate of tax or which may
be wholly exempt from tax under Section 11, or under
Section 6 of the Integrated Goods and Services Tax Act, and
includes non-taxable supply;
(59) "input" means any goods other than capital goods
used or intended to be used by a supplier in the course or
furtherance of business;
(60) "input service" means any service used or intended
to be used by a supplier in the course or furtherance of
business;
(62) "input tax" in relation to a registered person, means
the Central tax, State tax, Integrated tax or Union Territory
tax charged on any supply of goods or services or both
made to him and includes--
(a) the integrated goods and services tax charged
on import of goods;
(b) the tax payable under the provisions of sub-
sections (3) and (4) of Section 9;
(c) the tax payable under the provisions of sub-
sections (3) and (4) of Section 5 of the Integrated
Goods and Services Tax Act;
(d) the tax payable under the provisions of sub-
sections (3) and (4) of Section 9 of the respective
State Goods and Services Tax Act; or
(e) the tax payable under the provisions of sub-
sections (3) and (4) of Section 7 of the Union
Territory Goods and Services Tax Act,
but does not include the tax paid under the composition
levy;
WP(C) Nos.33278 of 2020, 24499 of 2020
(63) "input tax credit" means the credit of input tax;
(78) "non-taxable supply" means a supply of goods or
services or both which is not leviable to tax under this Act
or under the Integrated Goods and Services Tax Act;
(79) "non-taxable territory" means the territory which is
outside the taxable territory;
(84) "person" includes--
(c) a company;
(94) "registered person" means a person who is
registered under Section 25 but does not include a person
having a Unique Identity Number;
(105) "supplier" in relation to any goods or services or
both, shall mean the person supplying the said goods or
services or both and shall include an agent acting as such
on behalf of such supplier in relation to the goods or
services or both supplied;
(106) "tax period" means the period for which the return is
required to be furnished;
(107) "taxable person" means a person who is registered
or liable to be registered under Section 22 or Section 24;"
5.5. Close scrutiny of the provisions shows that the article "a" or
"the" is accompanied to terms like "person" and "registered
person". Such article has significance in construing the purport of
availing input tax credit and the context of refund of unutilized
input tax credit. The word 'a' has varying meanings and uses. 'A'
means 'one' or 'any', but less emphatically than either. It may
mean 'one' where only one is intended, or it may mean any one of
a great number. It is placed before nouns of the singular number,
denoting an individual object or quality individualized. The
WP(C) Nos.33278 of 2020, 24499 of 2020
meaning depends on the context. See, Black's Law Dictionary.
The article "A" has been given the meaning of "one of several
things" in Gujarat University Vrs. Shri Krishna Ranganath, AIR
1963 SC 703. In Shri Ishar Alloy Steels Limited Vrs. Jayaswals
Neco Limited, (2001) 3 SCC 609 it has been stated that the article
'a' or 'an' has an indefinite effect and a generalizing force. It
determines what particular thing is meant; i.e., what particular
thing one is to assume to be meant. The words 'a bank' is
indicator of the intention of Legislature and refers to an indirect
(indefinite) article.
5.6. When the context in which the aforesaid provisions are
couched, it can safely be said that it is the registered person who
can claim the refund. Since in respect of three units of the
company one/single GSTIN has been assigned, for the purpose of
making claims under the GST Act and rules framed thereunder, all
these three units are treated to be one individual. Therefore, the
petitioner-company applied for refund clubbing transactions of the
three units together, which was duly considered and the petitioner
availed the benefit. Subsequent thereto, it could not turn around
and ask for more refund by filing further application for refund
(supplementary refund) by computing the amount of refund taking
into account transactions of individual unit.
6. Section 54(1) of the GST Act stipulates time limit for
setting up claim for refund. Said sub-section reads as under:
"(1) Any person claiming refund of any tax and interest, if
any, paid on such tax or any other amount paid by him, may
WP(C) Nos.33278 of 2020, 24499 of 2020
make an application before the expiry of two 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."
6.1. Section 54(1) begins with the word "any person". The word
'any' has a diversity of meaning and may be employed to indicate
'all' or 'every' as well as 'some' or 'one' and its meaning in a
given statute depends upon the context and the subject-matter of
the statute. The use of the word 'any' in the context it has been
used in a statute may indicate that it has been used in wider sense
extending from one to all. Reference may be had to Shri
Balaganesan Metals Vrs. M.N. Shanmugham Chetty, (1987) 2
SCC 707; Lucknow Development Authority Vrs. M.K. Gupta,
(1994) 1 SCC 243; ACTO Vrs. Bajaj Electricals Ltd, (2008) 18
VST 436 (SC). Dictionary meaning of the word 'any' can indicate
'all' or 'every' as well as 'some' or 'one'. Usage depends upon
the context of subject-matter. The word 'any duty' should and
would encompass 'all' and 'every' type of refund payable under
the Act. See, Pioneer India Electronics Pvt. Ltd. Vrs. Union of
India, (2014) 26 GSTR 156 (Del).
6.2. Thus understood the meaning of the word "any" in the
present context, sub-section (1) of Section 54 without any
ambiguity admits that three units of the petitioner-company
having common GSTIN they are to be treated as one "person" in
WP(C) Nos.33278 of 2020, 24499 of 2020
terms of Section 25 read with clauses (84) and (94) of Section 2 of
the GST Act.
6.3. Section 54(3) of the GST Act read with Section 16(3) of the
IGST Act clarifies the position that claim for refund of unutilized
input tax credit is required to be made at the end of the tax period.
The term "tax period" has been defined under Section 2(106) of
the GST Act to mean "the period for which the return is required
to be furnished". The three units of the petitioner-company being
identified and recognized as single registered person in view of
common GSTIN being allotted under Section 25 of the GST Act,
the refund was calculated as per formula prescribed under Rule
89(4) of the GST Rules and claimed by the petitioner itself.
6.4. Under such premise, it can be held that the petitioner-
company cannot claim supplementary refund by computing
transaction of each individual unit treating as separate entity or
separate "registered person". It can further be seen that the
supplementary refund application(s) being furnished after the
period stipulated therein, the authority concerned has rightly
refused to entertain the said application. Supplementary refund
application(s) is furnished for fresh consideration based on unit-
wise figures. Such a fresh consideration, after original refund
application being disposed of, is not supported by any statutory
provision.
7. For the aforesaid reasons, the contention of the counsel for
the petitioner that the restriction placed by way of Circular bearing
No.125/44/2019-GST, dated 18.11.2019 to the effect that manual
WP(C) Nos.33278 of 2020, 24499 of 2020
refund applications are not allowed is arbitrary and illogical
cannot hold good inasmuch as the provisions of the statute do not
envisage filing of supplementary refund application and that too
taking different stance than that was taken while furnishing
original refund application. At the cost of repetition it is stated that
the original refund application(s) based on computation made by
the petitioner-company itself by taking transactions of all the three
units together was duly examined and the refund was granted. The
petitioner having accepted the same, at a belated stage could not
change its own version and apply for grant of supplementary
refund. Therefore, the challenge made to the aforesaid Circular
does not merit consideration in the present proceeding.
7.1. In the case of Indian Aluminium Co. Ltd. Vrs. Thane
Municipal Corporation, 1992 Supp (1) SCC 480 it has been held
that:
"5. However, a concession has to be availed at the
time when it was available and in the manner prescribed.
The common dictionary meaning of the word "concession"
is "the act of yielding or conceding as to a demand or
argument, something conceded; usually implying a demand,
claim, or request, a thing yielded, a grant". In the
Dictionary of English Law by Earl Jowitt, the meaning of
"concession" is given as under:
'Concession, a grant by a central or local
public authority to a private person or private
persons for the utilisation or working of lands, an
industry, a railway waterworks, etc.'
6. The expressions "rebate" and "concession" in
the commercial parlance have the same concept. In
WP(C) Nos.33278 of 2020, 24499 of 2020
Halsbury's Laws of England, (4th Edn., Vol. 39, para 198)
it is observed as under:
'Application for rebate.--
When a rating authority receives an
application for a rebate it has a duty to
determine whether the residential
occupier is entitled
