JUDGMENT

Saumitra Dayal Singh, J.

Heard Ms. Pooja Talwar, learned counsel for the petitioner and Sri Ankur Agarwal, learned Standing Counsel for the revenue.

2. Present petition has been filed seeking a direction upon the Assistant Commissioner (Incharge), State Tax, Mobile Squad Unit II, Muzaffarnagar to grant refund of Rs. 47,32,040/- recovered from the petitioner on 15.03.2018, upon encashment of the bank guarantee furnished by the petitioner to secure its interest qua the penalty order dated 09.03.2018.

3. Undisputedly, the petitioner is an ex-UP dealer. It was transporting certain quantities of 'beedi' from West Bengal to Haryana, using the State of U.P. as a transit State. On 22.02.2018, the aforesaid consignment of goods loaded on the truck bearing registration No. WB 11 B 2531 was detained by respondent no. 3 on the allegation of improper documentation giving rise to further allegation of smuggling of those goods inside the State of U.P.

4. Consequently, the goods were seized on 22.02.2018. That seizure order gave rise to further order under Section 20 of the IGST Act read with Section 129 (3) of the UP GST Act, 2017 (hereinafter referred to as the 'Act'). Consequently, tax Rs. 23,66,020/- and equal penalty, totaling to Rs. 47,32,040/- was demanded from the petitioner.

5. It is the petitioner's case that it furnished security in the shape of bank guarantee for the above amount, on 15.03.2018. Before the petitioner could have availed any remedy in appeal, that Bank Guarantee is disclosed to have been encashed on that date itself, at the instance of respondent no. 3. Encashment of the bank guarantee is not in dispute. Thus, the entire disputed amount of tax and penalty stood recovered by respondent no. 3.

6. In any case, the petitioner challenged the order dated 09.03.2018 by means of First Appeal No. GST - 67 of 2018 (A.Y. 2017-18). The same was allowed, vide order dated 18.03.2019. The operative portion of that order, reads as below :

^^vihy Lohdkj dh tkrh gS rFkk fookfnr vkns'k ls fu/kkZfjr dj :0 23]66]020-00 ,oa fu/kkZfjr vFkZn.M :0 23]66]020-00 dqy :0 47]32]040-00 lekIr fd;k tkrk gSA bl laca/k esa vf/kd tek /kujkf'k] ;fn dksbZ gks] rks og vihykFkhZ dks okilh ;ksX; gSA**

7. It is thereafter, the petitioner-assessee's real troubles began inasmuch as though the appeal order was never challenged by the State and though more than four years have passed since then, the said order has not been given effect to. Neither, the principal amount Rs. 47,32,040/- has been refunded to the petitioner nor any interest has been paid thereon.

8. As to the reason for delay in processing the claim for refund, it appears, the State respondents are of the view that such refund may have been granted only if the petitioner had made an application for refund on the online form RFD-01. Since that compliance of law has not been made, the claim for refund has not been honoured, till date.

9. Learned counsel for the petitioner has referred to the provisions of Section 54(1) read with sub-Section 7 and Section 56 of the Act. She has also relied on the provisions of Rule 97- A of the UP GST Rules, 2017 (hereinafter referred to as the 'Rules').

10. On the strength of those provisions of law, it has been pointed out, the petitioner was effectively prevented from moving the online application owing to technical glitches that existed on the GSTN portal. Relying on the pleadings made in paragraph no.23 of the writ petition and its lack of denial in the counter affidavit, it has been then submitted, the petitioner had moved its physical application to claim the refund within the statutory period of 60 days, by filing such application before respondent no.3 on 02.04.2019. Furt