2025 (9) TMI 470 - HC - GST

Taxpayer entitled to refund of unutilised compensation-cess credit for FY2021-22 with interest; Section 16(3)(b) misapplied

Sukraft Recycling Private Limited Versus Union of India through, The Joint Secretary, Department of Revenue, Ministry of Finance New Delhi, Assistant Commissioner of Central GST, Division-I, Goa, Additional Commissioner (Appeals) Central Tax, Goa.

Bombay HC allowed the taxpayer's challenge and directed refund of unutilised compensation-cess credit for FY 2021-22, with interest if admissible, within ... Refund of unutilised input tax credit of compensation cess paid on inputs used in manufacture of goods exported as zero-rated supply - Refund for the financial year 2021-2022 involve the interpretation of Section 16(3) of the Central Government Goods and Services Tax, Act, 2017 (CGST Act, 2017) to be read along with Section 11 of the Goods and Services Tax (Compensation to States) Act, 2017 or not - HELD THAT:- Section 11, which is a provision as regards the implementation of Section 8 and 9, categorically stipulate that the provisions of the Central Goods and Services Tax Act, and the rules made there under, including those relating to assessment, input tax credit, non-levy, short-levy, interest, appeals, offences and penalties, shall, as far as may be, mutatis mutandis, apply, in relation to the levy and collection of the cess leviable under Section 8 on the intra-State supply of goods and services, as they apply in relation to the levy and collection of central tax on such intra-State supplies under the Act. Similarly, by virtue of sub-Section (2), it is clarified that the provisions of the Integrated Goods and Services Tax Act, and the rules made there under, relating to assessment, input tax credit, non-levy, short-levy, interest, appeals, offences and penalties, shall, apply in relation to the levy and collection of the cess leviable under Section 8 on the inter-State supply of goods and services, as the case may be. What the Department is attempting to suggest, or rather has suggested is, if the Petitioner has adopted the mechanism prescribed in Clause (b) of Section 16(3) for the purpose of CGST/IGST, then the same mechanism must be followed while it claims refund in respect of compensation cess - the said logic appear to be flawed and this is clear from their own Circular issued by the Government of India, Ministry of Finance dated 30.05.2018, which is in the form of guidelines issued to the clarifications on refund related issues addressed to the Principal Chief Commissioners as well as Commissioners of Central Tax and all concerned and when we have a careful reading of the Circular which included Clause 5, which pertain to the refund of unutilised input tax credit of compensation cess availed on inputs in case where the final product is not subject to the levy of compensation cess, is the actual situation which the Petitioner find itself. It is completely illogical in stating that the Petitioner must avail only option (b) when, in fact, there is no compensation cess which is levied on the final product, i.e. the Kraft paper. The only reasoning adopted in the impugned order is that if, in respect of the final product, i.e. the Kraft paper, while claiming the refund of IGST/CGST, it has resorted to mechanism adopted in Clause (b) of Section 16(3) of the IGST Act, 2017, it must restrict its claim in the same fashion by adopting the same mechanism - merely because his application for refund is not backed with a bond or Letter of Undertaking, he cannot be restrained from availing the methodology prescribed in Clause (a) of Section 16(3) while he claimed refund of the unutilized compensation cess as an input tax credit. The Revenue is directed to refund the credit available to the Petitioner by way of compensation cess within a period of four weeks from today, along with interest, if at all admissible, on the said amount - Petition allowed. ISSUES PRESENTED AND CONSIDERED 1. Whether unutilised input tax credit of compensation cess paid on inputs used in manufacture of goods exported as zero-rated supply (with IGST paid on export) is refundable when the final product is not leviable to compensation cess. 2. Whether the option-mechanism in Section 16(3) of the IGST Act (clauses (a) and (b)) requires a taxpayer to adopt the identical mechanism for claiming refund of compensation cess credit, thereby precluding refund under the alternate route where compensation cess is not levied on the final product. 3. Whether the procedural and substantive provisions of the CGST/IGST Acts (by virtue of Section 11 of the Cess Act) incorporate mechanisms for claiming refund of compensation cess and, if so, the proper application of those mechanisms to facts where only inputs bear cess. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Refundability of unutilised input tax credit of compensation cess where final product is not cess-leviable Legal framework: The Cess Act levies compensation cess on specified supplies and contains provisions (Sections 8, 9 and 11) governing levy, returns, payment and refunds of cess. Section 11(1)-(2) provides that provisions of the CGST Act and IGST Act, mutatis mutandis, apply to levy/collection of cess for intra-State and inter-State supplies respectively. Section 9(1)(c) of the Cess Act requires application for refunds 'in such form as may be prescribed.' Definition provisions distinguish 'input tax credit' under the CGST/IGST regime (which does not include compensation cess) from the Cess Act's definition which specifically treats cess as input tax credit under that Act. Precedent treatment: The decision of a coordinate High Court dealing with similar facts was cited and followed in reasoning: it held that where exported final goods are not leviable to compensation cess, a taxpayer who paid IGST on export and could not utilize cess for payment of IGST is entitled to refund of unutilised compensation cess credit paid on inputs. Interpretation and reasoning: The Court examined the statutory definitions and the separate treatment of 'input tax credit' under the CGST/IGST Acts versus the Cess Act. It held that compensation cess credit is a separate component distinct from CGST/SGST/IGST credit. Because the final product (exports) is not leviable to compensation cess, the petitioner could not utilize cess credit against outward tax liability; consequently, the statutory scheme and incorporated procedures permit a refund of such unutilised cess credit. The Court also relied on administrative circulars (guidance) which envisage refund of unutilised cess credit where final product is not subject to cess. Ratio vs. Obiter: Ratio - where inputs bear compensation cess but the exported final product is not leviable to compensation cess and IGST has been paid on export, the unutilised compensation cess credit is refundable under the statutory scheme (Cess Act read with CGST/IGST Acts). Obiter - ancillary observations on policy of bond/LUT requirements in Clause (a) are explanatory and fact-specific. Conclusions: The Court concluded that the petitioner is entitled to refund of the unutilised input tax credit of compensation cess paid on inputs used for manufacture of exported goods not leviable to compensation cess. Issue 2 - Applicability of Section 16(3) IGST Act option-mechanism to compensation cess refund claims Legal framework: Section 16(3) of the IGST Act provides alternative mechanisms for zero-rated supplies: (a) supply made under bond or Letter of Undertaking (LUT) without payment of integrated tax and claim of refund of unutilised input tax credit; or (b) supply on payment of integrated tax and claim refund of tax paid. The IGST Act's concept of 'input tax credit' excludes compensation cess; the Cess Act, via Section 11, incorporates IGST/CGST refund procedures mutatis mutandis for cess claims. Precedent treatment: Administrative circulars interpreting refund routes were considered; a High Court decision applying Section 16(3) and Section 11 was referenced for support. The Court distinguished Departmental reliance on Clause (b) to deny independent refund of cess credit. Interpretation and reasoning: The Court rejected the Department's contention that the taxpayer must adopt the identical option under Section 16(3) for compensation cess refund simply because it adopted that option for CGST/IGST refund. The reasoning: the statutory scheme treats compensation cess distinctly; Section 16(3)'s mechanisms are limited in scope to IGST/CGST credits as defined in those Acts and do not alter the Cess Act's separate treatment. Furthermore, the Clause (b) mechanism is inherently inapplicable to cess where the final product is not leviable to cess because there is no cess payable on the output to be paid and refunded under Clause (b). Thus, compelling use of Clause (b) would be illogical and inconsistent with the statutory definitions and the incorporated provisions of the Cess Act. Ratio vs. Obiter: Ratio - the procedural option chosen under Section 16(3) IGST for CGST/IGST refunds does not preclude a separate refund route for compensation cess where the legal and factual matrix (i.e., final product not cess-leviable) makes Clause (b) inapplicable; petitioner may claim refund under the procedure incorporated into the Cess Act (Section 11 read with IGST/CGST provisions) even if it used a different route for IGST/CGST. Conclusions: The Court concluded that requiring the taxpayer to adopt Clause (b) for compensation cess refund is legally unsound where cess is not leviable on the final product; the taxpayer may claim refund of unutilised compensation cess credit under the incorporated refund procedures notwithstanding the route used for IGST/CGST claims. Issue 3 - Effect of procedural requirements (bond/LUT) and incorporation under Section 11 on entitlement to refund Legal framework: Clause (a) of Section 16(3) conditions zero-rated supply without payment of integrated tax upon furnishing a bond/LUT; such requirement is to ensure supply is actually effected. Section 11 of the Cess Act incorporates CGST/IGST procedural provisions for cess levy/collection, 'as far as may be.' Circulars issued by revenue provide clarificatory guidance on refund of unutilised cess credit where final product is not cess-leviable. Precedent treatment: Administrative guidance (Ministry Circular) and judicial interpretation in a parallel High Court case were considered authoritative in clarifying application of refund rules to cess. Interpretation and reasoning: The Court observed that bond/LUT serves as assurance where supply is made without payment of integrated tax; nevertheless, where export has been actually effected and IGST/CGST refund has been allowed (evidence of export), absence of bond/LUT should not bar refund of independent cess credit. Moreover, because Section 11 operates 'as far as may be' and incorporates relevant procedures, an application for refund of cess unutilised credit is governed by the Cess Act read with incorporated CGST/IGST procedures; this permits refund even where Clause (a) formalities differ from those invoked for IGST/CGST. The Court found the Department's insistence on identical procedural route (and strict application of bond/LUT requirement to deny cess refund) to be unreasonable when export and entitlement otherwise stand proved. Ratio vs. Obiter: Ratio - actual exportation and allowance of IGST/CGST refund satisfy the core purpose of bond/LUT assurance; therefore, absence of bond/LUT does not automatically disentitle a taxpayer to refund of unutilised compensation cess credit where statutory scheme and incorporated procedures permit such refund. Obiter - detailed policy rationale for bond/LUT beyond assurance function is explanatory. Conclusions: The Court held that procedural formalities under Section 16(3) cannot be mechanically applied to deny refund of compensation cess credit where export is established and the final product is not cess-leviable; revenue cannot insist on the taxpayer following Clause (b) or be denied refund for failure to furnish bond/LUT when the statutory and incorporated framework permits a cess refund. Disposition The Court concluded that the petitioner is entitled to refund of unutilised compensation cess credit paid on inputs used in manufacture of exported goods not leviable to compensation cess, and directed refund with interest (if admissible) within a specified period.