AI Drafter 
TaxTMI 
TaxTMI 
2020 (3) TMI 614
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....d from July to September 2017 along with appropriate interest on such refund amount; B. Pending notice, admission and final hearing of this petition, this Hon'ble Court may be pleased to direct the learned Respondents to forthwith grand refund of IGST paid on exports by the Petitioners after deducting the differential amount of duty drawback for the period from July to September 2017 along with appropriate interest on such refund amount; C. Ex-parte ad interim relief in terms of prayer B may kindly be granted; D. Such further relief(s) as deemed fit in the facts and circumstances of the case may kindly be granted in the interest of justice for which act of kindness your petitioners shall forever pray. " 3. The facts giving rise to this litigation may be summarized as under: 3.1. The Writ-Applicant No.1 is a Private Limited Company. The Writ-Applicant No.2 is one of the Directors and Authorized Signatory of the company. The writ-applicants are engaged in the business of trading of cotton yarn and cotton waste. The writ-applicants are registered under the Central/Gujarat/Integrated Goods and Services Tax Act, 2017 (for short 'the GST Act'). 3.2. Th....
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....Customs Act, 1962. 3.7. However, according to the writ-applicants, the IGST was paid on the exports along with the returns filed in the Form GSTR-3B. 3.8. It is the case of the writ-applicants that since the clearing and forwarding agent had erroneously selected the option of export without payment of tax while filing the shipping bill, the amount of the IGST paid was shown as 'Nil' in the shipping bill. In such circumstances, the customs authorities denied to grant refund of the IGST paid on exports by the writ-applicants. 3.9. In the aforesaid context, number of representations were filed before the Customs Authorities. 3.10. According to the writ-applicants, the respondents have not responded to the representations so far. In spite of the repeated requests, the refund of the IGST paid on the exports, during the period between July and September, 2017 has not been granted. 4. In such circumstances, the writ-applicants are here before this Court with the present Writ Application. 5. Mr. Uchit N. Sheth, the learned counsel appearing for the writ-applicants, submitted that the issue raised in this Writ Application is no longer res-integra in view of the decisi....
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....e 96 of the Rules, 2017. 27. In the aforesaid context, the respondents have fairly conceded that the case of the writ-applicant is not falling within sub-clauses (a) and (b) respectively of clause (4) of Rule 96 of the Rules, 2017. The stance of the department is that, as the writ-applicant had availed higher duty drawback and as there is no provision for accepting the refund of such higher duty drawback, the writ-applicant is not entitled to seek the refund of the IGST paid in connection with the goods exported, I.e. 'zero rated supplies'. 28. If the claim of the writ-applicant is to be rejected only on the basis of the circular issued by the Government of India dated 9th October 2018 referred to above, then we are afraid the submission canvassed on behalf of the respondents should fail as the same is not sustainable in law. 29. We are not impressed by the stance of the respondents that although the writ-applicant might have returned the differential drawback amount, yet as there is no option available in the system to consider the claim, the writ-applicant is not entitled to the refund of the IGST. First, the circular upon which reliance has been....
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....inding in law on the authorities under the respective statutes, but when the Supreme Court or the High Court declares the law on the question arising for consideration, it would not be appropriate for the Court to direct that the circular should be given effect to and not the view expressed in a decision of this Court or the High Court. So far as the clarifications/circulars issued by the Central Government and of the State Government are concerned they represent merely their understanding of the statutory provisions. They are not binding upon the court. It is for the Court to declare what the particular provision of statute says and it is not for the Executive. Looked at from another angle, a circular which is contrary to the statutory provisions has really no existence in law. 7. As noted in the order of reference the correct position vis-avis the observations in para 11 of Dhiren Chemical's case (supra) has been stated in Kalyani's case (supra). If the submissions of learned counsel for the assessee are accepted, it would mean that there is no scope for filing an appeal. In that case, there is no question of a decision of this Court on the point being rendered. Obviousl....
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....he Board are binding on the authorities under respective statute, but when this Court or High Court lays down a principle, it would be appropriate for the Court to direct that the circular should not be given effect to, for the circulars are not binding on the Court. In the case at hand, once circular dated 15.04.1994 stands withdrawn vide circular dated 16.04.2001, the appellant-assessee cannot claim the benefit of the withdrawn circular. 27.The controversy herein centres round the period from 1st April, 2001 to 31st March, 2002. The period in question is mostly post the circular dated 16.04.2001. As we find, the appellant-assessee has pleaded to take benefit of the circular dated 15.04.1994, which stands withdrawn and was only applicable to the notification dated 07.03.1994. It was not specifically applicable to the notification dated 21.01.2000. The fact that the third paragraph of the notification dated 21.01.2000 is identically worded to the third paragraph of the notification dated 07.03.1994 but that would not by itself justify the applicability of circular dated 15.04.1994. 28. In this context, we may note another contention that has been advanced before u....