JUDGMENT : (Deepak Roshan, J.) W.P.(T) No. 3944 of 2022 (Assessment Year 2009-10) has been preferred by the petitioner for setting aside of the order dated 28.05.2022 (Annexure-9) passed by the Joint Commissioner of Commercial Taxes, Jamshedpur Division, whereby the Tax authority has rejected the refund of the petitioner to the tune of Rs.56,86,616/- on two grounds; firstly, the refund application has been filed with delay and secondly, there being alleged outstanding dues of the petitioner. Similarly, W.P.(T) No. 3911 of 2022 (Assessment Year 2012-13) has been preferred for setting aside the order dated 28.5.2022 (Annexure-6) passed by the Tax Authority, whereby refund application of the petitioner to the tune of Rs. 19,09,596/- has been rejected on same and similar grounds. Since the issues are common, as such both these applications are being heard together and disposed of by this common judgment. For brevity, relevant facts have been taken from W.P.(T) No. 3944 of 2022. 2. An assessment order was passed on 01.04.2014 determining Rs. 35,06,253/- as the Tax payable by the petitioner. An excess demand Notice for the period 2009-10 was issued on 02.09.2014 to the petitioner in Form JVAT-300 indicating Rs.56,86,616/- as the excess amount paid by the petitioner, after taking into account the Tax paid by the petitioner and the TDS amount. Refund application has been made by the petitioner on 07.03.2015 in Form JVAT-206. It is the case of the petitioner that at the time of filing of refund application, no amount was due to be paid by the petitioner to the department. Reminder was given by the petitioner to process its refund Application. Subsequently, one letter was sent on 15.07.2019 by the Treasury Officer to the Commercial Taxes Office of Jharkhand Division indicating the Tax deposited by the petitioner. As a matter of fact, this letter was in response to a letter issued by the Commercial Taxes Department which shows that proceedings in respect of the refund was ongoing at the time of issuance of these correspondences. On 20.02.2020, petitioner was asked to file an online refund application which it duly did. On 31.05.2022, the petitioner received an e-mail indicating that its refund application has been rejected. Thereafter, petitioner applied for the entire order sheet of the Refund proceedings, which was supplied to the petitioner indicating therein that the proceedings has been recorded only from 04.01.2021 onwards. On 20.02.2020, petitioner was asked to file an online refund application which it duly did. On 31.05.2022, the petitioner received an e-mail indicating that its refund application has been rejected. Thereafter, petitioner applied for the entire order sheet of the Refund proceedings, which was supplied to the petitioner indicating therein that the proceedings has been recorded only from 04.01.2021 onwards. Literally, there was no mention of any proceedings prior to this date even though the refund application was filed nearly seven years back. On 28.05.2022, the JC (Admin) passed an order rejecting the Refund Application of the petitioner on the ground that the refund application had been filed beyond the period of limitation as provided in Rule 19(2)(a) of the JVAT Rules and certain tax liabilities were also outstanding for the year 2016-17 and 2017-18. Finally, on 30.05.2022 JC (Admin) wrote to the DCCT Jamshedpur Circle, Jamshedpur, informing him of his decision. Thereafter, on 23.06.2022 VAT & CST dues for the period 2016-17 and CST dues for the period 2017-18 had been stayed by the Appellate Court and on 14.11.2022, CST dues for the period 2016-17 and 2017-18 have been set aside by the appellate court and the case was remanded to the Assessing Officer. Constrained by the action of the respondent- Department, whereby they have rejected the refund claim application for both the period, i.e., 2009-10 and 2012-13, the petitioner approached this court by filing the aforesaid writ applications. 3. The respondents have also filed counter affidavit in the case but have not been able to either give explanation for the delay in processing the refund application; neither have they disputed the fact that the petitioner has paid an amount in excess. The respondents have also pursuant to the order dated 07.09.2022 filed a supplementary affidavit allegedly bringing on record of the proceedings pursuant to which the application for refund had been rejected. A perusal of page No.s 30, 37, 41 of the supplementary affidavit would reveal that upon issuance of reminders by the petitioner (Annexure-4, 4/1 and 4/2 to the writ petition), the respondents have simply noted that the steps to process refund application should be taken expeditiously. However, from the entire records not even a single document could be found which shows that the respondents have taken any step to process refund application of the petitioner for the last seven years. However, from the entire records not even a single document could be found which shows that the respondents have taken any step to process refund application of the petitioner for the last seven years. There also does not exist any proceedings recorded in the order sheet prior to 04.01.2021. 4. Mr. M.S. Mittal, learned Senior Counsel, assisted by Mr. Rahul Lamba and Mr. Salona Mittal, made following submissions: (I) First limb of argument of the petitioner’s counsel is that the Respondents took shelter of Rule 19 of JVAT Rules, 2006 to bar the claim of refund made by the petitioner on the ground of delay; though the provisions of Section 52 and 55 of the parent Act, i.e., JVAT Act, 2005 does not prescribe any period of limitation in seeking refund once the assesse becomes eligible for refund and excess demand notice has been issued. Learned senior counsel further submits that the procedure relating to grant of refund application is stated in Section 52 of the JVAT Act. It may be noted that Section 52 does not authorize the State Govt. to make any rule regarding the time limit within which a refund application can be filed. The provision for making of rule under Section 52 is only general in nature with regard to the manner and procedure of filing of refund applications. However, rule 19(2)(a) of the JVAT Rules states that the refund application must be filed within 90 days from receipt of the excess demand notice. He contended that when the legislature intends to delegate to the State Govt. the power to impose a time limit by way of rules; it has expressly done so in the JVAT Act. In this regard, he has referred to Sections 35(3)(b), 36(1) and 73(1) of the JVAT Act. By referring the aforesaid provisions, learned senior counsel submits that when the legislature proposes to delegate to the State Govt. the power to impose a time limit by way of rules; it has expressly done so in the JVAT Act. In this regard, he has referred to Sections 35(3)(b), 36(1) and 73(1) of the JVAT Act. By referring the aforesaid provisions, learned senior counsel submits that when the legislature proposes to delegate to the State Govt. the power to impose a time limit by way of rules; it has expressly done so in the aforesaid provisions of JVAT Act; however, when the legislature has consciously not used such a language under Section 52; the Government could not have, by way of Rules, prescribed a period of limitation for filing of a refund application and thus the refund application of the petitioner could not have been rejected on the ground of limitation since Rule 19(2)(a) is de hors the provision of Section 52 of the JVAT Act. II. The second limb of argument of the petitioner’s counsel is that it is now also well settled that merely because no relief has been sought to struck down rules which ultra vires; the same would not come in the way interfering them and which are bound to be ignored. Reference in this regard may be made to the decision rendered in the case of Shree Bhagwati Steel Rolling Mills v. CCE, (2016) 3 SCC 643 . This Court also recently in the case of M/s Subhash Singh Chaudhary vs. State of Jharkhand (WPT No. 2404/2020 vide order dated 09.01.2023 has held that – “17. We have also carefully examined Rule 117 of the JGST Rules which restricts the transitional provision of Section 140(1) of the JGST Act and permits only, migration of ‘input tax credit’ as against credit of value added tax and entry tax stipulated under Section 140 (1) of the JGST Act. Admittedly, Rule 117 of the JGST Rules, is a subordinate legislation and is restricts the scope of Section 140(1) of the JGST Act. As a Constitutional Court, we are bound to ignore Rule 117 of the JGST Rules when the question of its enforcement arises and mere fact that there was no specific relief sought for to strike down or to declare the said Rules as ultra vires would not stand in our way of not enforcing them. [See Shree Bhagwati Steel Rolling Mills v. Commissioner of Central Excise & Anr. (Supra)]. [See Shree Bhagwati Steel Rolling Mills v. Commissioner of Central Excise & Anr. (Supra)]. The aforesaid view has also been expressed by the Hon’ble Apex Court in the case of Bharthidasan University v. All-India Council for Technical Education reported in (2001)8 SCC 676 , wherein it was held as under: “14. The fact that the Regulations may have the force of law or when made have to be laid down before the legislature concerned does not confer any more sanctity or immunity as though they are statutory provisions themselves. Consequently, when the power to make Regulations is confined to certain limits and made to flow in a well-defined canal within stipulated banks, those actually made or shown and found to be not made within its confines but outside them, the courts are bound to ignore them when the question of their enforcement arises and the mere fact that there was no specific relief sough for strike down or declare them ultra vires, particularly when the party in sufferance is a respondent to the lis or proceedings cannot confer any further sanctity or authority and validity which it is shown and found to obviously and patently lack. It would therefore, be a myth to state that the Regulations made under Section 23 of the Act have ‘constitutional’ and legal status, even unmindful of the fact that any one or more of them are found to be not consistent with specific provisions of the Act itself. Thus, the Regulations in question, which AICTE could not have made so as to bind universities/UGC within the confines of the powers conferred upon it, cannot be enforced against or blind a university in the matter of any necessity to seek prior approval to commence a new department or course and programme in technical education in any university or any of its departments and constituent institutions.” III Learned counsel further contended that so far as question of outstanding dues are concerned; the Act does not envisage denial of Refund Application on the ground of existing dues, inasmuch as, Rule 19(5) of the JVAT Rules only deals with a situation where there exist outstanding dues to be paid at the time of filing of refund application. Else, it would enable the respondents to keep refund application pending for long period of time and then deny refund on the ground that dues have arisen subsequently. Else, it would enable the respondents to keep refund application pending for long period of time and then deny refund on the ground that dues have arisen subsequently. Even otherwise, it is submitted that as far as the period 2017-18 is concerned, the VAT dues have been paid and the CST dues have been set aside by the Appellate Court and for the period 2016-17, the VAT dues have been stayed and CST dues have been set aside by the Appellate Court. 5. Apart from aforesaid submissions, learned senior counsel contended that no explanation has been given as to why the refund application of the petitioner was kept pending for such a long period of time. There is also no explanation as to why when the petitioner was in fact taking steps to process the refund application, the order-sheet only starts from January 2021(Annexure 5 of the writ petition). It has been further submitted that a perusal of Section 55 of the JVAT Act would make it evident that interest would be levied for the period commencing 90 days after the application for refund. Thus, the legislature has intended that Refund Application should be decided within a period of 90 days. In the present case, the same has been given a complete go by. Thus, the action of the Respondents is unjust and arbitrary which seek to defeat legitimate claims of the petitioner. 6. Mr. Ashok Kr. Yadav, learned counsel for the respondents submits that Section 52 of the JVAT Act, 2005 read with Rule 19 of the JVAT Rules, 2006 specify that after the receipt of the excess demand notice to a dealer, the dealer is to make an application for refund in form JVAT 206 within 90 days. Rule 19 further prescribes that no refund shall be made to a dealer if there is an outstanding amount against it. He contended that from bare perusal of Rule 19(2)(a) of JVAT Rules the intent is clear and the word shall have been used to specify the duration, after receipt of an excess demand notice, within which a refund application should be preferred. He contended that from bare perusal of Rule 19(2)(a) of JVAT Rules the intent is clear and the word shall have been used to specify the duration, after receipt of an excess demand notice, within which a refund application should be preferred. It has further been submitted that the rules further prescribe that in cases of delay, the prescribed authority shall have the power to condone the delay on making of an application Further, Rules 19(5) clearly prescribes that no refund shall be made to any dealer if there is an amount outstanding against it. Rule 19(4) also gives powers to the prescribed authority to adjust the excess amount to be refunded against any outstanding dues against the dealer concerned. 7. Learned State counsel further submitted that pursuant to the receipt of the excess demand notice on 02.09.2014, the petitioner made an application for refund after much delay and beyond the period of 90 days as prescribed under the rules mentioned above. The petitioner also did not make any application for condoning the delay despite there being a provision as well as occasion for the same. He further submitted that after receipt of the refund application of the petitioner necessary steps were taken to verify the validity of the claim of the petitioner, however upon finding that the claim of the petitioner was made belatedly; without any accompanying application for condoning the delay, in addition to the fact that certain dues were also outstanding against the petitioner, after giving notice, the refund application of the petitioner was rejected vide order dated 28.05.2022 by the Joint Commissioner (Admin.), Jamshedpur Division. Summarizing his argument, learned counsel for the State contended that in both the aforesaid writ applications; on the one hand, there was outstanding dues and on the other hand, it was time barred claim, as such rejection has been made as per Rule 19(5) of JVAT Rules. 8. Having heard learned counsel for the parties and after going through the averments made in respective affidavits and the documents annexed therein following issues emerges for consideration (i) Whether rules can provide a period of limitation when there is no such prescription in the parent Act? (ii) When no relief has been claimed to strike down the rules as ultra vires; relief attached to can be granted? 9. (ii) When no relief has been claimed to strike down the rules as ultra vires; relief attached to can be granted? 9. So far as Issue No.1 is concerned; it has been considered by the Hon’ble Apex Court in the case of Bharat Barrel and Drum Mfg. Co. Ltd. v. ESI Corpn., (1971) 2 SCC 860 . The Hon’ble Supreme Court delved into the question as to whether limitation affects substantive and procedural rights. In this regard the law has been laid down as under: “10. ………... The present tendency is that where a question of limitation arises, the distinction between so-called substantive and procedural statutes of limitation may not be prove to be a determining factor but what has to be considered is whether the statute extinguishes merely the remedy or extinguishes the substantive right as well as the remedy. Instead of generalizing a principal the safest course would be to examine each case on its own facts and circumstances and determine for instance whether it affects substantive rights and extinguishes them or whether it merely concerns a procedural rule only dealing with remedies, or whether the intendment to prescribe limitation is discernible from the scheme of the Act or is inconsistent with rule-making power etc. 14…. It appears to us that where the Legislature clearly intends to provide specifically the period of limitation in respect of claims arising thereunder it cannot be considered to have left such matters in respect of claims under some similar provisions to be provided for by the rules to be made by the Government under its delegated powers to prescribe the procedure to be followed in proceedings before such Court. What is sought to be conferred is the power to make rules for regulating the procedure before the Insurance Court after an application has been filed and when it is seised of the matter. That apart the nature of the rule bars the claim itself and extinguishes the right which is not within the pale procedure. Rule 17 is of such a nature and is similar in terms of Section 80. That apart the nature of the rule bars the claim itself and extinguishes the right which is not within the pale procedure. Rule 17 is of such a nature and is similar in terms of Section 80. There is no gain-saying the fact that if an employee does not file an application before the Insurance Court within 12 months after the claim has become due or he is unable to satisfy the Insurance Court that there was a reasonable excuse for him in not doing so, his right to receive payment of any benefit conferred by the Act is lost. Such a provision affects substantive rights and must therefore be dealt with by the Legislature itself and is not to be inferred from the rule-making power conferred by regulating the procedure unless that is specifically provided for. It was pointed out that in the Constitution also where the Supreme Court was authorized with the approval of the President to make rules for regulating generally the practice and procedure of the Court, a specific power was given to it by Article 145(1)(b) to prescribe limitation for entertaining appeals before it. It is therefore apparent that the Legislature does not part with the power to prescribe limitation which it jealously retains to itself unless it intends to do so in clear and unambiguous terms or by necessary intendment. Thus, it has been inter alia held that where the legislature intends to provide the period of limitation it specifically provides for the same in the main Act and does not leave it to the government under its delegated power. Since the Rule bars the claim of the Corporation, the same can’t be within the realm of procedure. It was also held that since such a provision affects substantive rights, it must be dealt with the legislature itself and cannot be inferred from the rule making power unless provided for expressly. 10. It may further be noted that when the legislature intends to delegate to the State Govt. the power to impose a time limit by way of rules, it has expressly done so in the JVAT Act. 10. It may further be noted that when the legislature intends to delegate to the State Govt. the power to impose a time limit by way of rules, it has expressly done so in the JVAT Act. Reference may be made to Sections 35(3)(b), 36(1) and 73(1) of the JVAT Act, the relevant portions of which are reproduced hereinbelow- “S.35(3) Where a registered dealer having turnover upto 1(one) crore per annum other than the registered dealer referred to under sub-section 5 has furnished:- (a)….. (b) Revised returns and annual returns in respect of any tax period within the prescribed time and in the prescribed manner. S. 36 (1) Where a registered dealer fails to furnish the return in respect of any tax period within the prescribed time, the prescribed authority shall, notwithstanding anything contained in Section 37, proceed to assess the dealer provisionally for the period for such default. S 73(1) Every clearing, forwarding or booking agent, Government Departments, Banks, Financial Institutions, warehouses, godowns, cold storages or Broker or a person transporting goods who in course of his business handles the document of title to the goods or transports goods or takes delivery of goods for or on behalf of a dealer and having his place of business in the State of Jharkhand, shall furnish information about his place of business to the prescribed Authority, within such time and in such manner as may be prescribed.” Therefore, it can safely be held that when the legislature has consciously not used such a language under Section 52 of the Act, the Government could not have, by way of Rules, prescribe a period of limitation for filing of a refund application. In the present case as well, the right to refund gets extinguished by the time limit provided in the JVAT Rules. This certainly affects the substantive and statutory right of the petitioner to get refund to which it is guaranteed under Section 52 of the JVAT Act. Thus, we hold that the refund application of the petitioner could not have been rejected on the ground of limitation since Rule 19(2)(a) is de hors the provision of Section 52 of the JVAT Act. 11. Now, so far as question of outstanding dues is concerned; it transpires that the Act does not envisage denial of Refund Application on the ground of existing dues. 11. Now, so far as question of outstanding dues is concerned; it transpires that the Act does not envisage denial of Refund Application on the ground of existing dues. Rule 19(5) of the JVAT Rules only deals with a situation where there exist outstanding dues to be paid at the time of filing of refund application. Otherwise, it would allow the respondents to retain refund application pending for long period of time and then deny refund on the ground that dues have arisen subsequently; which is not and cannot be the intent of the legislature. Reliance in this regard is placed on the judgment of Hon’ble Supreme Court in Global Energy Ltd. v. Central Electricity Regulatory Commission, (2009) 15 SCC 570 wherein it was held that- “25. It is now a well-settled principle of law that the rule-making power “for carrying out the purpose of the Act” is a general delegation. Such a general delegation may not be held to be laying down any guidelines. Thus, by reason of such provision alone, the regulation-making power cannot be exercised so as to bring into existence substantive rights or obligations or disabilities which are not contemplated in terms of the provisions of that said Act. 26. We may, in this connection refer to a decision of this Court in Kunj Behari Lal Butail v. State of H.P. [ (2000) 3 SCC 40 ] wherein a three –Judge Bench of this Court held as under: (SCC p. para 14) “14. We are also of the opinion that a delegated power to legislate by making rules ‘for carrying out the purposes of the Act’ is a general delegation without laying down any guidelines; it cannot be so exercises as to bring into existence substantive rights or obligations or disabilities not contemplated by the provisions of the Act itself.” Apart from the above law held in the above judgments; it emerges that as far as the period 2017-18 is concerned, the VAT dues have been paid and the CST dues have been set aside by the Appellate Court. For the period 2016-17, the VAT does have been stayed and CST dues have been set aside by the Appellate Court. 12. At this stage, it is also relevant to indicate that no explanation has been given as to why the refund application of the petitioner was kept pending for such a long period of time. For the period 2016-17, the VAT does have been stayed and CST dues have been set aside by the Appellate Court. 12. At this stage, it is also relevant to indicate that no explanation has been given as to why the refund application of the petitioner was kept pending for such a long period of time. There is also no explanation as to why when the petitioner was in fact taking steps to process the refund application, the order sheet only starts from January 2021(Annexure 8). From scrutiny of Section 55 of the JVAT Act it would make it evident that interest would be levied for the period commencing 90 days after the application for refund. Thus, the legislature has intended that Refund Application should be decided within a period of 90 days. In the present case, the same has been given a complete go by. 13. In view of the aforesaid deliberations we hold that the action of the Respondents is unjust and arbitrary which seek to defeat legitimate claims of the petitioner. In this context, reference may be made to the judgment of the Hon’ble Supreme Court in the case of Hindustan Sugar Mills v. State of Rajasthan, (1978) 4 SCC 271 , wherein it has been held that- “18. …. It is true and we are aware that there is no legal liability on the Central Government to do so, but it must be remembered that we are living in a democratic society governed by the rule of law and every Government which claims to be inspired by ethical and moral values must do what is fair and just to the citizen, regardless of legal technicalities. We hope and trust that the Central Government will not seek to defeat the legitimate claim of the assessee for reimbursement of Sales Tax on the amount of freight by adopting a legalistic attitude but will do what fairness and justice demand. After all, the motto of every civilized State must be : “Let right be done.” 14. We hope and trust that the Central Government will not seek to defeat the legitimate claim of the assessee for reimbursement of Sales Tax on the amount of freight by adopting a legalistic attitude but will do what fairness and justice demand. After all, the motto of every civilized State must be : “Let right be done.” 14. Having regard to the discussions made here in above, the impugned order in the respective writ applications i.e., the order dated 28.05.2022 (Annexure-9) in W.P.(T) No. 3944 of 2022 for the Assessment Year 2009-10, whereby the Tax authority has rejected the refund of the petitioner to the tune of Rs.56, 86, 616/- and also the order dated 28.5.2022 (Annexure 6) in W.P.(T) No. 3911 of 2022 for the Assessment Year 2012-13, whereby refund application of the petitioner to the tune of Rs. 19,09,596/- has been rejected, is hereby, quashed and set-aside. The Respondents are hereby directed to calculate the amount of refund including interest for both the periods involved in the aforesaid writ applications strictly in accordance with law and pay the same to the petitioner forthwith. It goes without saying that the entire exercise shall be completed within a period of 12 weeks from the date of receipt/production of copy of this order. 15. With the aforesaid directions, both these applications stand disposed of in the manner indicated herein above. I.A., if any, also stands disposed of.