The authority must comply with orders in appeal and cannot refuse to do so based on decisions taken by higher authorities.

JUDGMENT :

R.D. DHANUKA, J.

1. Rule. Mr. Jitendra Mishra, the learned counsel for the Respondents waives service. By consent of parties, the petition is heard finally.

2. By this petition filed under Article 226 of the Constitution of India, the Petitioner has prayed for writ of certiorari for quashing and setting aside the Order dated 12.02.2021 passed by the Respondent No. 3 in refund claim described in prayer clause (a) of the petition and prays for allowing the said claim in its entirety.

3. The Petitioner had applied for refund of GST on 02.02.2019 to the Respondent No. 3. On 02.05.2019, the refund application in respect of Q2 was rejected. On 01.05.2019, the refund application in respect of Q3 was rejected. Being aggrieved by Order rejecting those two applications, the Petitioner filed an appeal before the Respondent No. 2-Additional Commissioner on 02.08.2019. On 14.10.2019, the Respondent No. 2 was pleased to set aside the orders passed by the Respondent No. 3 and allowed the appeal.

4. On 04.11.2019, the Petitioner filed the refund claim before the Respondent No. 3. On 14.11.2019, the Respondent No. 3 rejected the refund claim for Q2 and Q3. On 12.03.2020, the Petitioner filed appeal before the Additional Commissioner, Pune against the said Order dated 14.11.2019.

5. On 29.10.2020, the Respondent No. 2 was pleased to set aside the Order dated 14.11.2019 rejecting the claim for Q2 and Q3 and directed to pass speaking Order. On 15.02.2020, the Petitioner filed a refund claim pursuant to the Order of the Additional Commissioner. On 12.02.2021, the Respondent No. 3 again rejected the claim for the periods of Q2 and Q3 on the ground that the Order-in-Appeal dated 14.10.2019 of the Commissioner (Appeals-II), Central Tax, Pune-II on the strength on which instant refund claim had been initially filed, has been reviewed by the Commissioner Central Tax, Pune - II Commissionerate, Pune vide his Review Order dated 13.04.2020, directing therein to file an appeal against the said Order dated 14.10.2019.

6. It is further held that upon further examination in the matter it has been held that in respect of refund claim filed under ‘Any Other’ category instead of category under which Nil refund claim was filed, the condition (b) under Para 3 of the Circular No. 110/29/2019-GST dated 03.10.2019, that of refund application for subsequent period did not appear to fulfilled. The applicant were not eligible to file refund under Any Other’ category for the period July to September 2018 as they had filed the refund claim for subsequent period i.e. October to December 2018.

7. The Assistant Commissioner further held that the Appellate Authority was found to have erred in rejecting Order No. 68/Refund/Rejection/68/19-20 dated 02.05.2019 and Order No. 140/Refund/2019-20 dated 01/05/2019 passed by the Assistant Commissioner, Division Solapur, Central Tax, Pune II allowing Assessee’s appeal with the direction contained in Para 9.2 and 10.1 of the Order. The Order dated 14.10.2019 passed by the Additional Commissioner (Appeal-II), Central Tax, Pune was held as not legal, proper and needed to be set aside.

8. It is further held that the said Order in Appeal dated 14.10.2019 of the Commissioner (Appeals-II), Central Tax, Pune-II, being held erroneous is to be appealed against before the GST Tribunal as soon as it is constituted with request to set aside the said Order in Appeal dated 14.10.2019 being not legal and proper and to stay the operation of the said Order in appeal dated 14.10.2019 and to pass any other order as deemed fit in the facts and circumstance of the case. The learned Assistant Commissioner accordingly held that refund claim could not be decided for the said periods on account of inverted duty structure when appeal is to be filed on the issue before the GST Tribunal as soon as it is constituted. Since the issue has not attained finality, the refund claim is filed pre-maturely.

9. When this matter appeared before this Court on 14.12.2021, the