TaxTMI 
TaxTMI 
2023 (10) TMI 148
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....his petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs: "24... (a) Your Lordships be pleased to admit and allow this petition; (b) Your Lordships be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction to the Respondents to immediately sanction the refund of IGST paid in regard to the goods exported vide Shipping Bill Nos .8134141 dated 21.08.2017, 9044375 dated 03.10.2017, 8282183 dated 28.08.2017, 8359804 dated 31.08.2017, 8372438 dated 31.08.2017, 8402425 dated 01.09.2017, 8414985 dated 02.09.2017 and 8754952 dated 19.09.2017; (c) That the Hon'ble Court may be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction to the Respondent authorities to pay interest @6% to the Petitioner herein on the amount of refund from the date of Shipping Bill till the date on which the amount of refund is paid to the petitioner, as the same is arbitrarily and illegally withheld by the Respondents; (d) Pass order to grant an ex-parte, ad interim order in favour of the petitioner herein in terms of prayer clause 'A' and 'B' he....
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....ppearing with learned advocate Mr. Hardik Modh for the petitioner would submit that undisputedly the goods exported by the petitioner were "Zero Rated Supplies" and in accordance with Section 16(3)(b) of the IGST Act, the petitioner is entitled to refund of such tax paid on the goods and services. It was only through oversight that the custom house agent had selected 'A' rather than 'B'. Reliance was placed on the following decisions: (I) In case of Real Prince Spintex Pvt. Ltd. v. Union of India reported in 2020 (35) G.S.T.L. 369 (Guj) (II) In case of Aniket Exports v. Union of India rendered in Special Civil Application No. 10226 of 2020 (III) In case of Amit Cotton Industries v. Principal Commissioner of Customs reported in 2019 (29) GSTL 200 (Guj). (IV) In case of Awadkrupa Plastomech Pvt. Ltd. v. Union of India reported in 2021 (46) GSTL 31 (Guj). (V) In case of Asian Organo Industries v. Principal Commissioner of Customs reported in 2021 (46) GSTL 225 (Guj). 5.1 It was argued by the learned counsel for the petitioner that the case was squarely covered by the decision of this Court in case of Amit Cotton Industries (supra). 6.....
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....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 writapplicant 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 submis....
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....tage of a decision of the Supreme Court. The consequences of issuing a circular are that the authorities cannot act contrary to the circular. Once the circular is brought to the notice of the Court, the challenge by the revenue should be turned out and the revenue cannot lodge an appeal taking the ground which is contrary to the circular. 6. 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 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 l....
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....ision of the enactment, etc. to the detriment of the assessee. Needless to emphasise that a circular should not be adverse and cause prejudice to the assessee. (See : UCO Bank, Calcutta v. Commissioner of Income Tax, West Bengal - (1999) 4 SCC 599. 26. In Commissioner of Central Excise, Bolpur v. Ratan Melting and Wire Industries - (2008) 13 SCC 1, it has been held that circulars and instructions issued by the 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 noti....