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2021 (1) TMI 1221
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....ion-F, Jaipur (hereinafter referred to as "the adjudicating authority or Proper Officer"). As the common issue is involved in all these two appeals, therefore, I take up the same for decision simultaneously. Sl. No. Appeals No. Order-in-Original No. & date (Impugned Order) Period of Dispute Refund rejection amount (Rs.) 1 APPL/JPR/CGST/ JP/29/VIII/19/ RFD/37/GST/Div-C/Ref-Final/2019, dated 22-5-2019 Aug., 2018 6,09,718/- 2 APPL/JPR/CGST/ JP/42/XI/19 CGST DIV-F/69/PV/19-20, dated 6-8-2019 March, 2019 9,94,169/- 2. Brief facts of the case : 2.1 The appellant having GSTIN No. 08AAECP5113E1ZR is engaged in manufacturing and supply of Solar Panel has filed application for refund in respect of unutilized Input Tax Credit of Rs. 10,61,774/- for the month of August, 2018 on account of ITC accumulated due to Inverted Tax Structure. Out of which Rs. 4,52,056/- has been sanctioned and Rs. 6,09,718/- has been rejected. Further, the appellant has also filed application for refund in respect of unutilized Input Tax Credit of Rs. 19,88,667/- for the month of March, 2019 on account of ITC accumulated due to Inverted Tax Structure. Out of....
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....ubmitted any undertaking stating that they shall not file an appeal against the rejection or in case they file an appeal, the same is finally decided against the claimant, as has been laid down in Rule 93 of the CGST Rules, 2017. Therefore I order not to re-credit the rejected amount in electronic credit ledger of the claimant using Form GST RFD-01B." Accordingly, through RFD-06, the adjudicating authority has rejected the refund amounting to Rs. 6,09,718/- and 9,94,169/- respectively. 4. Being aggrieved with the impugned orders, the appellant has filed appeals mainly on the following grounds that :- - that the appellant is engaged in business of manufacturing and supply of Solar Panel falling under HSN 8541 which attract 5% GST. The inputs, input services and capital goods procured for manufacture of Solar Panel attract GST rate ranging from 18% to 28% which results into accumulation of input tax credit. The appellant filed refund claim in respect of accumulated Input Tax Credit due to inverted tax structure for the month of August, 2018. - that the respondent then issu....
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....s or services or both made to him and includes - (a) the Integrated Goods and Services Tax charged on import of goods; (b) the tax payable under the provisions of sub-sections (3) and (4) of Section 9; (c) the tax payable under the provisions of sub-sections (3) and (4) of Section 5 of the Integrated Goods and Services Tax Act; (d) the tax payable under the provisions of sub-sections (3) and (4) of Section 9 of the respective State Goods and Services Tax Act; or (e) the tax payable under the provisions of sub-sections (3) and (4) of Section 7 of the Union Territory Goods and Services Tax Act, 2017. - that the appellant submits that in the light of Section 2(62) of Central Goods and Services Tax Act, 2017 it is clear that "input tax" mean Central Tax, State Tax, Integrated Tax or Union Territory Tax charged on any supply of goods or services or both. - that the appellant further submits that in view of above mentioned Sections and on harmonious reading of above referred sections, it is clear that refund under Section 54(3) of Central Goods and Services Tax Act, 2017 is allowed in re....
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.... the oral iteration offered by the appellant in their appeal memo. Accordingly, I proceed to decide the case envisioning the facts submitted by the appellant as well as put forth in the impugned orders. 7. On going through the impugned Orders passed by the Adjudicating Authorities, I find that the Adjudicating Authorities have rejected the refund of appellant mainly on the ground that "In the light of Para 4.2 of Circular No. 59/33/2018-GST, dated 4-9-2018 I observed that the claimant is not eligible for the refund on input services and eligible for the refund on Inputs. Further, as per requirement of Para of Circular No. 59/33/2018-GST, dated 4-9-2018 the claimant has not submitted any undertaking stating that they shall not file an appeal against the rejection or in case they file an appeal, the same is finally decided against the claimant, as has been laid down in Rule 93 of the CGST Rules, 2017. Therefore I order not to re-credit the rejected amount in electronic credit ledger of the claimant using Form GST RFD-01B." Accordingly, through RFD-06, the adjudicating authority has rejected the refund amounting to Rs. 6,09,718/- and 9,94,168/- respectively as these refund ....
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....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 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." Also, the Rule 89(5) of the CGST Rules, 2017 provides that - "CHAPTER X REFUND 89. Application for refund of tax, interest, penalty, fees or any other amount. - xx       xx       xx [(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) &nbs....
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....o noteworthy that the Government is also empowered to give retrospective effect to the rules or any of them from a date not earlier than the date on which the provisions of this Act come into force by virtue of Section 164(3) of the Act :- 164. Power of Government to make rules. - xx       xx       xx (3) The power to make rules conferred by this section shall include the power to give retrospective effect to the rules or any of them from a date not earlier than the date on which the provisions of this Act come into force. 13. Therefore, I find that the Central Government, in contemplation of the powers conferred by Section 164 of the Central Goods and Services Tax Act, 2017 (12 of 2017), has amended the Central Goods and Services Tax Rules, 2017 by issuing the Notification No. 26/2018-Central Tax, dated 13-6-2018. 14. I find that the subject matter has also been under consideration at various judicial and quasi-judicial authorities and the recent progression in the matter is prominent to deliberate cautiously hereunder, which is not only a obiter dicta but als....
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....17. Now progressing a step ahead, on taking sturdy look of the amendment in the provision of the Rule 89(5) of the CGST Rules, 2017 vide Notification No. 26/2018-Central Tax, dated 13-6-2018, I find that it unambiguously verbalizes that Net ITC shall mean input tax credit availed on inputs during the relevant period other than the input tax credit availed for which refund is claimed under sub-rules (4A) or (4B) or both. Further, the definition of the input and input services under Section 2(59) and 2(60) of the Act, stipulates that unless the context otherwise requires the same shall mean as under :- "2. Definitions. - xx       xx       xx (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; (60) "input service" means any service used or intended to be used by a supplier in the course or furtherance of business;" 18. Further, the refund provision should be treated on a par with an exemption provision. For this principle, in W.P. No. 8596 of 2019 Batch etc. to the jud....