TaxTMI 
TaxTMI 
2013 (6) TMI 385
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....o far as it restricts the claim of refund of ITC made by the petitioner as per the application filed in Form-W, dated 30.09.2008 and 20.06.2008. 3. The case of the petitioner is as follows:- a) The petitioner-company herein is a registered 100% Export Oriented Unit (EOU) and an assessee on the file of the respondent herein bearing TIN No.33663182153 and is inter-alia engaged in the business of export of Made-ups and Fabrics to other countries. For the purpose of the said export, the petitioner herein purchases raw materials and capital goods on payment of VAT and they are used in the manufacture of final products that are then exported outside India. (b) On receipt of Form-W filed by the petitioner-company on 30.09.2008 and 20.6.20....
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....39;s replies, dated 17.11.2008 and 12.9.2008, chose to allow the claim of ITC only in respect of the minor issue raised supra and with reference to the core issue of dis-allowing the claim of refund on the ITC claimed, the respondent over-ruled their reply by stating that the petitioner-company had violated the provisions of section 3(2) of the Tamil Nadu Value Added Tax Act (for short, 'the TNVAT Act') by paying 12.5% tax instead of 4% that was actually payable and further contended that their sellers who had charged 12.5% in their sale invoices would also be permitted only 4% by their respective jurisdictional authorities. In fine, the respondent stated that the excess amount collected from the petitioner-company and paid over int....
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....nce with law. The petitioner should seek remedy by filing Revision Petition as provided under Section 54 of the TNVAT Act. There is no cause for demanding any payment of tax or furnishing of security before the Revisional Authority as stated by the petitioner-dealer. 5. I have heard the learned counsel appearing for the parties and perused the material documents available on record. 6. I do not agree with the stand taken by the respondent herein. It is worthwhile to quote the provisions of Section 18 of the TNVAT Act, particularly Section 18(1) and (2): "18. Zero rating.- (1) The following shall be zero rate sale for the purpose of this Act, and shall be eligible for input tax credit or refund of the amount of the tax paid on the p....
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....it or made a claim for refund within a period of 180 days from the date of accrual of such ITC, the same shall lapse to the Government. 8. Given the fact that the choice of an adjustment of the input tax credit is given to the assessee, the question of a suo-motu adjustment by the Revenue, hence, does not arise, more so, when an assessee seeks a refund of the ITC as provided for under sub-section (2). It is admitted that the petitioner had in fact paid the tax at 12.5% which could not be refuted by the seller. If there had been a charging of tax by the seller when effected the sale to the purchaser at the rate over and above what is payable under the TNVAT Act, all that the Revenue could do is to proceed against the seller of the goods f....
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....tion of the learned Additional Government Pleader, who overlooks the fundamental fact of difference between the earlier Act and the present Act that when the ITC claim clearly shows that the purchaser had paid the tax at 12.5%, the question of the seller coming forward before the authority concerned as regards the collection of tax or as to the proof on the passing of liability, does not arise. The learned Additional Government Pleader contended that section 18(2) does not have any restrictive words to mean that the "dealer" could refer only a purchaser to grant a refund. I reject this line of contention outright, as going by Section 18(2) of the TNVAT Act, which is very emphatic in its wording, that the dealer referred to therein to claim ....