2020 (12) TMI 356

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....gned Order)  & date (lmpugned order) Period of dispute   Order sanctioning /rejecting refund 1 2 3 4 5   APPL/JPR/CGST/AL/29/VI/2020/ Order No. ZV0804200296271 dated 16.04.2020 Appellant has filed refund claim under Section 54(3) (ii) of the  CGST Act, 2017of Rs. 6,50,000/- for the period April to September 2019 on account  of inverted duty structure. Refund rejected Rs. 6,50,000/- Total Rs.  Rs. 6,50,000/- 2 APPL/JPR/CGST/AL/30/VI/2020 Order No. ZV0804200296 271 dated 16.4.2020 Appellant has filed refund claim under Section 54(3) (ii)   of the  CGST Act, 2017 of Rs. 7,00,000/- for the period October to December 2019 on account  of inverted duty structure. Refund rejected Rs. 7,00,000/- Total Rs.  Rs. 7,00,000/- 2.  BRIEF FACTS OF THE CASE: 2.1  The appellant having GSTIN No.08AJPA6514HIZY is engaged in activity of trading business i.e. Supply of Goods such as Scientific and Technical Instruments, Apparatus, Equipment etc., The effective rate of GST on Scientific and Technical Instrumen....

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....tus, Equipment etc., are not covered under the definition of inputs as defined under Section 2(59) of the CGST Act, 2017. • that the subject Goods are covered under the definition of goods. • that as per Section 2(59) "input" means any goods other than capital goods used or intended to be used by a supplier in the course or furtherance of business; • that, on plain reading of the above definition it is clear that any goods used by supplier in the course or for furtherance of business falls under the definition of inputs. • that, Ld AO have out rightly erred in holding that such goods can not be classified as inputs under Section 2(59) of the CGST Act, 2017 when they are removed as such. Whereas Section 2(59) does not have any such explanation associated with it. • that definition of Input is elaborated as under: (i)  It should be goods other than capital goods; (ii)  It should be used or intended to be used by supplier in the course of furtherance of business; • that goods have been defined under Section 2(52) of the CGST Act, 2017- "goods" means every kind of movable property ....

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....y in which they are engaged as public authorities, as may be notified by the Government on the recommendations of the Council, shall be treated neither as a supply of goods nor a supply of services. (3) Subject to the provisions of [sub-sections (1), (IA) and (2)], the Government may, on the recommendations of the Council, specify, by notification, the transactions that are to be treated as - (a)  a supply of goods and not as a supply of services; or (b)  a supply of services and not. as a supply of goods. • that, phrase in the course of furtherance of business needs to be examined in detail as it has been used again in explaining scope of supply. Term business have been defined under Section 2(17) of CGST /SGST Act, 2017 "business" includes- (c)  any activity or transaction in the nature of sub-clause (a), whether or not there is volume, frequency, continuity or regularity of such transaction; (d)  supply or acquisition of goods including capital goods and services in connection with commencement or closure of business; (e)  provision by a club, association, society, or any such body (for a subscription or any other considera....

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....efund of unutilised input tax credit shall be allowed in cases where the goods exported out of India are subjected to export duty . Provided also that no refund of input tax credit shall be allowed, if the supplier of goods or services or both avails of drawback in respect of central tax or claims refund of the integrated tax paid on such supplies • that there is no limitation on sanctioning of refund to trading concern. The only limitations which have been clearly specified in the first & second proviso is that it is not available in following cases • where the goods exported out of India are subjected to export duty. • if drawback is availed or refund with respect to IGST has been claimed by the supplier. • that appellant are forced to sell goods at reduced rate because of notification, hence denial of refund of excess input tax credit is bad in law. The appellant has also placed reliance on the findings pf Hon'ble Apex Court and High Court of Delhi in the case of M/s Panacea Biotech Limited. 4.  Personal Hearing in the case was held on 05.11.2020 through video conference, wherein, Shri Mohit Golyan, Chartered ....

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.... than the rate of tax on output supplies (other than nil rated or fully exempt supplies), except supplies of goods or services or both as may be notified by the Government on the recommendations of the Council . Provided further that no refund of unutilized input tax credit shall be allowed in cases where the goods exported out of India are subjected to export duty : Provided also that no refund of input tax credit shall be allowed, if the supplier of goods or services or both claims refund of the integrated tax paid on such supplies. 7.  Rule 89 (5) of the CGST Rules, 2017 prescribes the formula for the maximum refund amount permissible to the assessee on account of inverted duty structure is as under. [(5) In the case of refund on account of inverted duty structure, refund of input tax credit shall be granted as per the following formula : - Maximum Refund Amount = { (Turnover of inverted rated supply of goods and services) x Net ITC / Adjusted Total Turnover} - tax payable on such inverted rated supply of goods and services. Explanation : - For the purposes of this sub-rule, the expressions - (a)  Net ITC shall mean input tax credit availed on....