TaxTMI 
TaxTMI 
2020 (12) TMI 1116
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....the date of shipping bill till the date on which the amount of refund is paid to the petitioner herein, as the same is arbitrarily and illegally withheld by the respondent authorities; (C) Your Lordships may be pleased to grant an ex-parte, ad interim order in favour of the petitioner herein in terms of prayer clause 'A' and 'B' hereinabove; (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. 2. It appears from the materials on record that the writ-applicant wants the respondent-authorities to sanction the refund of Integrated Goods and Service Tax [herein after referred to as the 'IGST'] paid in respect of the goods exported i.e. 'Zero Rated Supplies' vide the shipping Bill No.7452830, dated 19/07/2017. It is the case of the writ-applicant that the respondents authorities have illegally withhold the refund of the IGST referred to above. The claim of the writ applicant came to be rejected under Section 54 of the Central Goods and Service Tax Act, 2017 [herein after referred to as the '....
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....nth of July, 2017 in the Form GSTR01 and GSTR3B. 5. It is submitted that owing to the fact that various IGST refunds were stuck due to mismatch of invoice and shipping bill, the Central Board of Excise & Customs (hereinafter referred to as 'the CBIC') vide Circular No.05/2018Customs, dated 23.02.2018 provided an alternative mechanism to give the exporters an opportunity to rectify such errors committed in the initial stages which required the petitioner to submit a concordance table mapping between the GST invoices and Shipping Bill. Such concordance table was duly filed by the petitioner on 19.03.2018. 6. The respondents have invoked the Circular No.37/2018Customs dated 09/10/2018 to deny the refund. In para4.5 of the reply, the respondent authorities have relied on the Notification 131/2016-Cus. (N.T.) dated 31.10.2016, which specified the rate of drawback subject to the notes and conditions mentioned in the notification. It is submitted that in light of the Notification 131/2016-Cus.(N.T.) dated 31/10/2016, the petitioner has not availed the higher duty drawback as the rates of higher and lower duty drawback remains the same i.e. 2 percent. The stance of the res....
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....ay be prescribed. If, on receipt of any such application, the proper officer is satisfied that the whole or part of the amount claimed as refund is refundable, he may make an order accordingly and the amount so determined will have to be credited to the Fund referred to in Section 57 of the CGST Act, 2017. 26. Rule 96 of the CGST Rules provides for a deeming fiction. The shipping bill that the exporter of goods may file is deemed to be an application for refund of the integrated tax paid on the goods exported out of India. Section 54 referred to above should be read along with Rule 96 of the Rules. Rule 96(4) makes it abundantly clear that the claim for refund can be withheld only in two circumstances as provided in subclauses (a) and (b) respectively of clause (4) of Rule 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 subclauses (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 highe....
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....nce of higher and lower duty drawback, whereas, in the instant case, the writ-applicant has not returned the amount of the difference of higher and lower duty drawback. 8. We are not impressed by such submission because the rates of higher and lower duty drawback remains the same i.e.two percent and no occasion would arise to refund the differential amount as argued by the learned counsel appearing for the revenue. The Circular No.37/2018Customs, dated 09/10/2018 referred to above by the Competent Authority would apply only to the cases, where the exporters have availed the option to take drawback at the higher rate in place of the IGST refund out of their own volition. In the instant case, the assessee had never availed the option to take drawback at higher rate in place of the IGST refund. In such circumstances, the Circular is not applicable to the facts of the present case. 9. Even as per the Condition No.7 of the Notification 131/2016-Cus. (N.T.) dated 31/10/2016, if the rate indicated in the columns (4) i.e. higher duty drawback and (6) i.e. lower duty drawback are the same, then it shall necessarily imply that the same pertains only to the Customs component and is avai....