Blog No. 45: Department decides to file appeal before GST Tribunal – Incorrect ground in refusing to allow refund

An Assistant Commissioner cannot refuse to comply with the order of superior authorities, and hence cannot act as if he is sitting in an appeal against the order of superior authority.

Observing the same, Hon’ble Bombay High Court in the case of Globus Petroadditions Private Limited 2022 (2) TMI 506 held that the Assistant Commissioner cannot reject the refund order on the ground that department has decided to challenge the order of appellate authority before GST Tribunal. Read more about the case below:

Facts of the Case

1. The Petitioner had applied for refund of GST.
2. Refund applications were rejected by the proper officer.
3. Petitioner filed the appeal before first appellate authority wherein the appeal was allowed and rejection orders were set aside (‘First order-in-appeal’, in short).
4. Petitioner filed the refund claim for second time and said refund applications were once again rejected. The petitioner filed the appeal before first appellate authority. The appeals were allowed (‘Second order-in-appeal’, in short).
5. Petitioner filed the refund claim for third time and said refund applications were once again rejected on the ground that

i)             review committee directed to file appeal against first order-in-appeal of first appellate authority.

ii)            The first refund application under ‘Any Other’ category in not proper as the petitioner has filed the refund application for subsequent period.

Observations

6. The Assistant Commissioner has refused to comply with the Order passed by the Commissioner (Appeals-II) by recording reasons as to why the said Order cannot be complied with as if the Assistant Commissioner was sitting in appeal against the order of the Commissioner (Appeals). 
7. The Assistant Commissioner is directed to comply with the Orders in Appeal passed by the Commissioner (Appeals-II) Central Tax Pune, within four weeks from the date of communication of this order and to pass an appropriate order in accordance with law without being influenced by the observations made and the conclusion drawn in the first Order-in-Appeal.
8. We hope that the Assistant Commissioner shall not refuse to comply with the first Order-in-Appeal passed by the Assistant Commissioner (Appeals-II) on the ground that the decision to impugn the said Order before the GST Tribunal is taken by the higher Authority.