TaxTMI 
TaxTMI 
2023 (12) TMI 662
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....ment, against an order dated 6 December 2018 passed by the Deputy Commissioner, CGST and Central Excise, Division-I, Bhiwandi Commissionerate, by which the petitioner was granted refund of the Input Tax Credit (ITC). 2. The petitioner had made an application for refund dated 29 August 2018 inter alia praying for refund of the unutilized ITC amounting to Rs. 1,30,30,548/- under Section 54(3) of the CGST Act, 2017 on export of goods under Letter of Undertaking (LOU). Such order dated 11 October 2018, was passed on the petitioner's refund application, whereby the petitioner was granted 90% of its refund claim as a provisional refund under Section 54(3) of the CGST Act, of an amount of Rs. 1,17,27,495/-. Soon thereafter, the petitioner was i....
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....s of Rule 89 of the CGST Rules, 2017 and more particularly sub-rule (4) of Rule 89. 6. Our attention has been drawn to the said provisions of Rule 89(4) of the CGST Rules. The relevant extract of such provision reads thus:- "89. Application for refund of tax, interest, penalty, fees or any other amount (1) ...... (2) ...... (3) ...... (4) In the case of zero-rated supply of goods or services or both without payment of tax under bond or letter of undertaking in accordance with the provisions of sub-section (3) of section 16 of the Integrated Goods and Services Tax Act, 2017 (13 of 2017), refund of input tax credit shall be granted as per the following formula - Refund Amount = (Turnove....
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.... supply of services has not been completed during the relevant period; (E) ―Adjusted Total Turnover means the sum total of the value of- (a) the turnover in a State or a Union territory, as defined under clause (112) of section 2, excluding the turnover of services; and ((b) the turnover of zero-rated supply of services determined in terms of clause (D) above and non-zero-rated supply of services, excluding- (i) the value of exempt supplies other than zerorated supplies; and (ii) the turnover of supplies in respect of which refund is claimed under sub-rule (4A) or sub-rule (4B) or both, if any, during the relevant period; (F) "Relevant period" means the period for which the claim h....
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.... submitted by the learned counsel for the petitioner that the impugned order passed by the Appellate authority is required to be declared to be bad and illegal. 9. On the other hand, Mr. Kantharia, learned counsel for the respondents supports the impugned order. He submits that the Circular dated 18 November 2019 had rightly been applied by the Appellate Authority in adjudicating the department's appeal, however, Mr. Kantharia does not dispute that the Circular dated 31 March 2020 clarifies the Circular dated 18 November 2019. 10. Having heard learned counsel for the parties and having perused the record, we find much substance in the contentions as urged on behalf of the petitioner. It appears to be an admitted position that the peti....
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....regard the Circular dated 31 March 2020. The appellate authority ought to have recorded a finding on such issue. 12. In the aforesaid circumstances, we find that the order passed by the Appellate Authority cannot be sustained and would be required to be set aside. We are accordingly, inclined to allow the petition by the following order :- (i) The impugned order dated 18 September 2020 passed by the Appellate Authority is quashed and set aside. (ii) Appeal filed by the Department is restored to the file of the Appellate Authority, to be decided afresh in the light of our observations and more particularly considering the effect of the Circular dated 31 March 2020. (iii) All contentions of the parties in the App....