TaxTMI 
TaxTMI 
2022 (1) TMI 547
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....dent authorities to pay interest @ 18% to the petitioner herein on the amount of refund of IGST mentioned hereinabove from the date of shipping bill up 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. (E) Your Lordships may be pleased to grant an ex parte ad interim order in favour of the petitioner herein in terms of prayers clause "C" and "D" hereinabove." 2. The principal grievance raised by the petitioners is the inaction of the respondent Authorities regarding refund of IGST towards Shipping Bills dated 05.07.2017 to 10.08.2017. 3. The petitioners are engaged in trading and export of cotton, yarn, textiles, fabrics, etc. and they hold valid GST Registration No.27AAKCS0140G1ZL. It is the case of the petitioners that they had exported goods (Comber Noil) under various invoices for which they had paid IGST of an amount of Rs. 14,94,739/-. The petitioners have referred to and relied upon form GSTR-1 and GSTR-3B, which they claimed to have filed within prescribed time. It is the case of the petitioners that inadvertently, the petitioners Company had claimed d....
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.... 20/07/2017 15734.00 2360.00 13374.00 79930.45 06 7517165 21/07/2017 50059.00 7509.00 42550.00 256364.90 07 7516021 21/07/2017 16298.00 2448.00 13850.00 86681.20 08 7556291 24/07/2017 173115.00 52337.00 120778.00 172239.85 09 7802881 03/08/2017 33856.00 5078.00 28778.00 172239.85 10 7847374 05/08/2017 14689.00 2203.00 12486.00 75167.00 11 7894392 08/08/2017 15074.00 2261.00 12813.00 77117.80 12 7943766 10/08/2017 30842.00 4626.00 26216.00 157952.10 TOTAL 422900.00 89807.00 333093.00 1494739.30 5. It is further contended by the learned advocate for the petitioner that the goods supplied by the registered person were neither NIL rated goods or exempt supplies. The said supplies are affected by the payment of IGST in accordance with the provisions contained in Section 16(3)(b) of the IGST Act. According to the said provision, a registered person making "Zero Rated Supply" has an option to claim refund in accordance with Section 16(3)(b) of the Act or as he may supply goods or service or both on payment of integrated tax a....
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.... 07 AIM/EXP058/17-18 20/07/2017 AIM/EXP/058/17-18 20/07/2017 7516021 21/07/2017 131305 05/08/2017 EGLV100770013305 27/07/2017 08 AIM/EXP059/17-18 22/07/2017 AIM/EXP/059/17-18 22/07/2017 7556291 24/07/2017 131307 05/08/2017 SUDUI7866A1L1439 28/07/2017 09 AIM/EXP060/17-18 02/08/2017 AIM/EXP/060/17-18 02/08/2017 7802881 03/08/2017 132220 29/09/2017 EGLV100770014026 10/08/2017 10 AIM/EXP062/17-18 04/08/2017 AIM/EXP/062/17-18 04/08/2017 7847374 05/08/2017 132243 29/09/2017 EGLV100770013895 12/08/2017 11 AIM/EXP063/17-18 04/08/2017 AIM/EXP/063/17-18 04/08/2017 7894392 08/08/2017 132243 29/09/2017 EGLV100770014352 12/08/2017 12 AIM/EXP065/17-18 09/08/2017 AIM/EXP/065/17-18 09/08/2017 7943766 10/08/2017 133071 29/09/2017 1897X03731 17/08/2017 6. Learned advocate for the petitioner has further drawn attention of this Court to the copies of the Demand Drafts of aggregating amount of Rs. 3,39,245/- paid back by the petitioner Company which has actually been credited in the account of the Customs Department. It was further submitted by the petitioner that the inaction of the respondent....
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....o allow the petitioners to avail IGST refund who on their own volition initially claimed benefits of higher drawback. 8. The Learned Counsel Mr. Utkarsh Sharma appearing for the respondent no.1 to 3 had urged that at relevant stage, the petitioner company on it's own volition had punch option "Ä" and had drawn higher draw back. It is further urged that the respondent authorities are bound by the instructions issued under Board Circular and therefore cannot sanction IGST refund. It is also contended by the learned Counsel for the respondents that the decision rendered by this Court in the case of Amit Cotton (supra) had been challenged by filing SLP before the Hon'ble Apex Court, however, the said appeal has been not entertained on the ground of delay as against that the there is yet another SLP pending before the Hon'ble Apex Court where the very said decision relied upon is under consideration. The Learned Counsel fairly accepted that no stay has been granted by the Hon'ble Apex Court in the pending SLP. 9. Heard learned advocates for the petitioner as well as respondents. 10. On perusal of the records of the case, it appears that the petitioners have exported goods ....
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....Nations (Privileges and Immunities) Act, 1947, Consulate or Embassy of foreign countries or any other person or class of persons, as notified under section 55, entitled to a refund of tax paid by it on inward supplies of goods or services or both, may make an application for such refund, in such form and manner as may be prescribed, before the expiry of six months from the last day of the quarter in which such supply was received. (3) Subject to the provisions of sub-section (10), a registered person may claim refund of any unutilised input tax credit at the end of any tax period: Provided that no refund of unutilised input tax credit shall be allowed in cases other than - (i) zero rated supplies made without payment of tax; (ii) where the credit has accumulated on account of rate of tax on inputs being higher 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 unutilised input tax credit shall be allowed in cases where the goods exported out of India are s....
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....ntained in sub-section (5), the refundable amount shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to-- (a) refund of tax paid on zero-rated supplies of goods or services or both or on inputs or input services used in making such zero-rated supplies; (b) refund of unutilised input tax credit under subsection (3); (c) refund of tax paid on a supply which is not provided, either wholly or partially, and for which invoice has not been issued, or where a refund voucher has been issued; (d) refund of tax in pursuance of section 77; (e) the tax and interest, if any, or any other amount paid by the applicant, if he had not passed on the incidence of such tax and interest to any other person; (f) the tax or interest borne by such other class of applicants as the Government may, on the recommendations of the Council, by notification, specify. (9) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any court or in any other provisions of this Act or the rules made thereunder or in any other law for the time being in f....
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....tion,-- (1) "refund" includes refund of tax paid on zero-rated supplies of goods or services or both or on inputs or input services used in making such zero-rated supplies, or refund of tax on the supply of goods regarded as deemed exports, or refund of unutilised input tax credit as provided under sub-section (3). (2) "relevant date" means- (a) in the case of goods exported out of India where a refund of tax paid is available in respect of goods themselves or, as the case may be, the inputs or input services used in such goods,-- (i) if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India; or (ii) if the goods are exported by land, the date on which such goods pass the frontier; or (iii) if the goods are exported by post, the date of despatch of goods by the Post Office concerned to a place outside India; (b) in the case of supply of goods regarded as deemed exports where a refund of tax paid is available in respect of the goods, the date on which the return relating to such deemed exports is furnished; (c) in the case of services exporte....
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....ercise of the powers conferred under section 37 of the Act, the supplier shall furnish the information relating to exports as specified in Table 6A of FORM GSTR-1 after the return in FORM GSTR-3B has been furnished and the same shall be transmitted electronically by the common portal to the system designated by the Customs: Provided further that the information in Table 6A furnished under the first proviso shall be auto-drafted in FORM GSTR1 for the said tax period. (3) Upon the receipt of the information regarding the furnishing of a valid return in FORM GSTR-3 or FORM GSTR3B, as the case may be from the common portal, the system designated by the Customs or the proper officer of Customs, as the case may be, shall process the claim of refund in respect of export of goods and an amount equal to the integrated tax paid in respect of each shipping bill or bill of export shall be electronically credited to the bank account of the applicant mentioned in his registration particulars and as intimated to the Customs authorities. (4) The claim for refund shall be withheld where,- (a) a request has been received from the jurisdictional Commissioner of central tax,....
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....ed Tax (Rate), dated the 23rd October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1321 (E), dated the 23rd October, 2017 or notification No. 78/2017- Customs, dated the 13th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Subsection (i), vide number G.S.R 1272(E), dated the 13th October, 2017 or notification No. 79/2017-Customs, dated the 13th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1299 (E), dated the 13th October, 2017." 11. Section 16 of the IGST Act, 2017 referred to above deals with Zero rated supply ie. For supplies of goods or services or both, which includes supplies of export of goods or services or both, and supplies made to the Special Economic Zone Unit or Special Economic Zone Developer and the manner of zero rating. It is not in dispute that the goods in question are one of "Zero Rated supplies". A registered person making "Zero Rated Supplies" becomes eligible to claim refund under the options as provided in sub-clauses (a) and (b) to clause (3) of Section 16 referred to above. Sect....
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....eligible to claim refund under the options as provided in sub-clauses (a) and (b) to clause (3) of Section 16 referred to above. 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 sub-clauses (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 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 cla....
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.... of Central Excise, Bolpur v. Ratan Melting and Wire Industries, reported in 2008(12) S.T.R. 416 (S.C.). In the aforesaid decision, the Constitutional Bench of the Apex Court was considering the binding nature of a circular issued under the Central Excise act, 1944 which were contrary to decisions rendered by the Supreme Court. The Apex Court in the above case held that :- "Circulars and instructions issued by the Board are no doubt binding 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 S.R.JOSHI 16 of 18 wp-1266-2013 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....
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....e ground that exporters had availed the option to take drawback at higher rate in place of the IGST refund out of their own volition. This Court held as under: "9. Even as per the Condition No.7 of the Notification131/2016-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 available irrespective of whether the exporter has availed of the CENVET facility or not. 10. The petitioner had exported Rope Making Machine HSN Code 84794000 which attracts the same rate under both the columns (4) & (6) respectively i.e. 2 percent. Thus it is evident that the petitioner has claimed drawback of the customs component only for their exports and there arises no question of denying the refund of IGST. The rationale for not allowing the refund of IGST for those exporters, who claim higher duty drawback is that the higher duty drawback reflects the elements of Customs, Central Excise and Service Tax taken together and since higher duty drawback is already being availed than granting the IGST refund wou....
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....o be refunded under subsection (5) of section 54 to any applicant is not refunded within sixty days from the date of receipt of application under subsection (1) of that section, interest at such rate not exceeding six per cent. as may be specified in the notification issued by the Government on the recommendations of the Council shall be payable in respect of such refund from the date immediately after the expiry of sixty days from the date of receipt of application under the said sub-section till the date of refund of such tax: Provided that where any claim of refund arises from an order passed by an adjudicating authority or Appellate Authority or Appellate Tribunal or court which has attained finality and the same is not refunded within sixty days from the date of receipt of application filed consequent to such order, interest at such rate not exceeding nine per cent. as may be notified by the Government on the recommendations of the Council shall be payable in respect of such refund from the date immediately after the expiry of sixty days from the date of receipt of application till the date of refund. Explanation: For the purposes of this section, where any o....