IMPORTANT POINT
Transitional credit recognized in GST Form TRAN-1 must be considered for refund claims under Section 54 of the CGST Act, regardless of its verification timing.

ORDER :

Bhargav D. Karia, J.

1. Rule returnable forthwith. Learned advocate Mr. P.Y. Divyeshvar waives service of notice of rule for respondent no.2 and learned advocate Mr. Utkarsh Sharma waives service of notice of rule for respondent no.4.

2. Heard learned advocate Mr. Anand Nainawati for the petitioner, learned advocate Mr. P.Y. Dvyeshvar for respondent no.2 and learned advocate Mr. Utkarsh Sharma for respondent no.4.

3. These petitions are filed arising out the order passed by the Commissioner (Appeals) dated 07.03.2019 in Appeal Nos.207 and 208/2018-19, whereby the Commissioner (Appeals) allowed the appeals filed by the department setting aside the orders sanctioning the refund for the months of July, 2017 and August, 2017 by the adjudicating authority. Special Civil Application Nos.17988 and 17989 of 2019 are filed against the common order dated 07.03.2019 passed by the Commissioner (Appeals) in Appeal Nos.207 and 208/2018-19. Special Civil Application No.18874 of 2021 and Special Civil Application No.6600 of 2022 are filed challenging the show cause notice dated 02.12.2021 and the common order in original dated 16.02.2021, which were issued and passed for giving effect to the order passed by the Commissioner (Appeals) fore recovery of the refund sanctioned and paid to the petitioner for the month of July, 2017 and August, 2017 by the adjudicating authority.

4. Brief facts of the case are as under:-

4.1 On 27.10.2017 The petitioner filed of FORM GST TRAN-1 and the transitional credit of Rs.14,30,19,855/- was sanctioned. On 20.12.2017 Filing of refund claim for the month of July 2017 under FORM GST RFD- 01A for Rs.2,58,59,476/- in terms of Section 54 of CGST Act, 2017.

4.2 On 03.01.2018 filing of refund claim for the month of August, 2017 under FORM GST RFD-01A for Rs.7,80,46,724/- in terms of Section 54 of CGST Act, 2017

4.3 On 07.03.2018 refund order in FORM GST RFD-06 passed by the Ld. Deputy Commissioner, CGST & Central Excise, Ahmedabad, granting the refund of Rs.2,58,59,476/- of accumulated ITC on export without payment of duty.

4.4 On 24.10.2018, review order passed by the Ld. Commissioner of CGST & Central Excise, Ahmedabad North for filing of appeal against refund order dated 07.03.2018.

4.5 On 25.10.2018, Appeal filed by the Assistant Commissioner of CGST & Central Excise, Ahmedabad North against the refund order granted by the Ld. Deputy Commissioner.

4.6 On 07.03.2019, Order-in-Appeal passed by the Ld. Commissioner (Appeals), allowing the appeal filed by the Department to deny refund granted to the Petitioner for the months of July and August 2017.

4.7 On 16.10.2019, order passed by this Court in Special Civil Application Nos. 17988 and 17989 of 2019 filed by the petitioner, issuing notice to the Department and also granting interim relief to the petitioner, by restraining the Department from initiating any recovery proceedings against the Petitioner in respect of ITC refund already granted to the petitioner.

4.8 On 02.12.2020, demand notice issued to the petitioner, thereby proposing to recover the refunded amount of Rs.2,58,59,476/- and Rs.2,78,40,210/- under Section 73 of CGST Act, 2017.

4.9 On 25.01.2021, reply to the demand notice submitted by the Petitioner.

4.10 On 16.02.2021, impugned Order-in-Original passed by the respondent No.4, confirming the recovery of an amount of Rs.2,58,59,476/- and Rs.2,78,40,210/- from the petitioner along, along and Mat with applicable interest and also imposing penalty of Rs.25,85,948/- and Rs.2,78,40,210/- for the month of July and August, 2017 on the petitioner under the relevant provisions of Section 73 of CGST Act, 2017.

5. Learned advocates for both the parties submitted that similar petition being Special Civil Application No.12712 of 2019 is argued before this Court today and therefore, they have adopted the arguments made in Special Civil Application No.12712 of 2019 by learned advocates and have submitted that these petitions are also required to be allowed considering the subm