TaxTMI 
TaxTMI 
2024 (10) TMI 275
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.... applicants in Civil Application. 2. Rule returnable forthwith. Learned advocate Mr. Siddharath H. Dave waives notice of service of rule on behalf of the respondent Union of India. 3. This application is filed for review of the CAV judgment and order dated 20.10.2020 passed in Special Civil Application No. 15833 of 2018 on various mistakes apparent on record pointed out in the Misc. Civil Application. 4. The applicant is the original petitioner and holder of Advance Authorization Licenses (AA License) granted under the Foreign Trade Policy 2015-2020 in terms of Notification No. 79/2017-Cus dated 13th October, 2017. 5. The applicant challenged various Notifications and the amended Rule 96 of the Central Goods and Service Tax Rules, 2017 ("CGST Rules" for short) being inserted or substituted in Sub-rule (10) of Rule 96 of the CGST Rules with effect from 23rd October, 2017 from time to time. 6. The applicant subsequently amended the petition on 19th July, 2019 challenging the Notification No. 54/2018 Central Tax - dated 9th October, 2018 which finally substituted Rule 96 (10) of the CGST Rules with effect from 9th October, 2018. 7. Special Civil Application No. 15833 of 2018 was....
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....cense is not ultra vires to the CGST Act and the CGST Rules. 14. Learned advocate Mr. Abhishek Rastogi appearing for the applicant-original petitioner submitted that in the CAV judgment, it is incorrectly stated that "Sub-Rule (10) of Rule-96 of the CGST Rules was introduced vide para-3 of Notification No. 54/2018-Central Tax, dated 9th October, 2018, issued by the Respondent no. 1 Ministry of Finance w.e.f. 23rd October, 2017." It was further submitted that Notification No. 54/2018-CT was issued by respondent no. 1 with effect from 09.10.2018 and therefore, notification cannot be effective from 23.10.2017. 15. It was further submitted that similar mistake is committed in para no. 4.5 of the CAV judgment wherein it is incorrectly recorded that "Sub-rule (10) of Rule-96 of CGST Rules was inserted by the Central Goods and Service Tax (3rd Amendment) Rules, 2017 w.e.f. 1st July, 2017" and further it was incorrectly recorded that "sub-rule (10) provides for the exemption for AA license holders importing goods from levy of custom duties and IGST.". 16. It was submitted that Rule 96 (10) only restricts the rebate option and not the exemption as observed. It was therefore, submitted th....
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....r AA licenses and to the extent IGST is paid by the applicant petitioner, it has not availed any IGST benefit under AA License. 24. It was pointed out that fact about payment of IGST on goods procured for export purposes is also considered and since 23rd October, 2017, the petitioner has paid IGST of Rs. 4.56 crores to protect itself from departmental harassment and interest liability. It was therefore, prayed that to the extent of IGST paid, the petitioner is entitled to rebate claim filed under Rule 96 (10) of the CGST Rules. 25. It was pointed out that in para 8.13 of the CAV judgment, it is incorrectly observed that the petitioner has availed benefit under Notification No. 40/2017-CT (Rate) dated 23rd October 2017. 26. Similarly, it was incorrectly stated that Notification No. 54/2018 would be applicable not from 23rd October, 2017 but from the inception which is also not correct as the Notification No. 54/2018 is made effective prospectively from 9th October, 2018 and therefore, there is an apparent mistake on record that said notification was applicable retrospectively which is also clarified in para.3.1 of the Circular No. 70/44/2018-GST dated 26.10.2018 issued by the res....
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....th October 2018 amending sub-rule (10) of Rule 96 of the CGST Rules is valid or not. 8.2. In order to consider the issue of validity of the Notification No. 54/2018 substituting the sub-rule (10) of Rule 96 of CGST Rules, it would be necessary to refer to the scheme of Advance Authorized Licenses. The Government of India, Ministry of Finance vide Notification No. 18/2015-Customs, dated 1st April 2015 issued in exercise of the powers conferred by Section 25 (1) of the Customs Act, 1962 (for short 'the Customs Act') exempted materials imported into India, against a valid Advance Authorization issued by the Regional Authority in terms of paragraph-4.03 of the Foreign Trade Policy, from the whole of the duty of customs leviable thereon, which is specified in the First Schedule to the Customs Tariff Act, 1975 and from the whole of the additional duty leviable thereon under sub-sections (1), (3) and (5) of Section 3 thereon, and Integrated Tax leviable thereon under sub-section (7) of section 3 of goods and service tax compensation Cess leviable thereon under sub-section (9) of Section 3, safeguard duty leviable thereon under Section 8B, countervailing duty leviable thereon under Secti....
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....i) and (xiii) were inserted, whereby it was provided that the exemption from Integrated Tax and the Goods and Services Tax compensation Cess leviable thereon under sub-section (7) and sub-section (9) of Section 3 of Customs Tariff Act shall be subject to pre-import condition and available upto 31st March 2018. 8.5. Rule 96 of the CGST Rules provides for procedure of refund of Integrated Tax paid on goods or services exported out of India, as per Section 54 of the CGST Act. Rule 96 (10) as it originally existed, when the Rules came into force provided that the persons claiming refund of Integrated Tax paid on export of goods or services should not have received supplies on which the supplier has availed the benefit from Government of India, Ministry of Finance, under Notification No. 48/2017 dated 18th October 2017 or Notification No. 40 of 2017 dated 23rd October 2017 or Notification No. 41 of 2017-Integrated Tax (Rate), dated 23rd October 2017 or Notification No. 78 of 2017-Customs dated 30th October 2017 or the Notification No. 79 of 2017-customs dated 13th October 2017. 8.6. Thereafter, sub-rule (10) of Rule-96 of the CGST Rules was amended by the Notification No. 39/2018 da....
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....l Goods and Services Tax Rules, 2017, namely:- 1 (1) These rules may be called the Central Goods and Services Tax (Eleventh Amendment) Rules, 2018. (2) They shall be deemed to have come into force with effect from the 23rd October, 2017. 2 In the Central Goods and Services Tax Rules, 2017, in rule 96, for sub-rule (10), the following sub-rule shall be substituted and shall be deemed to have been substituted with effect from the 23rd October, 2017, namely:- "(10) The persons claiming refund of integrated tax paid on exports of goods or services should not have received supplies on which the supplier has availed the benefit of the Government of India, Ministry of Finance, notification No. 48/2017-Central Tax, dated the 18th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R. 1305(E), dated the 18th October, 2017 or notification No. 40/2017 - Central 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. 1320 (E), dated the 23rd October, 2017, or notification No. 41/2017-Integrated Tax (Rate), dated the 23rd October, ....
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....nder Advance Authorization License scheme as per the Notification No. 18/2015 which was amended by Notification No. 79/2017 dated 13th October 2017 and paid integrated tax on the goods procured by the petitioners for the export purpose. 8.13. Notification No. 48/2017-C.T. dated 18th October 2017 has declared the following goods and the explanation thereto states that, "Advance Authorization" means an authorization issued by the Director General of Foreign Trade under Chapter-4 of the Foreign Trade Policy 2015-20 for import or domestic procurement of inputs on pre-import basis for physical exports. Therefore, as the petitioner has availed the benefits of AA License as per Notification No. 40/2017-CT (Rate) dated 23rd October 2017 and has enjoyed the exemption of GST on the supply of the goods from the registered supplier for the purpose of export on fulfilling the conditions prescribed therein. It appears that, thereafter, by Notification No. 39/2018-CT dated 4th September 2018 has substituted the sub-rule (10) of Rule-96 w.e.f. 23rd October 2017, however, by Notification No. 54/2018, the application of the substituted sub-rule (10) of Rule-96 is not made effective from 23rd Octob....
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....ation No. 54/2018 is therefore held to be effective w.e.f. 23rd October 2017 as per the Notification No. 39/2018 dated 4th September, 2018 w.e.f. 23rd October, 2017. Rule is made absolute to the aforesaid extent, with no order as to costs." 33. Considering the submissions made by learned advocate Mr. Rastogi and the findings recorded here in above from para nos. 8.1 to 9 and on perusal of the Notification No. 54/2018 dated 9th October, 2018 we are of the opinion that there is a mistake apparent on record in CAV judgment dated 20th October, 2020. 34. It would therefore, be necessary to refer to Notification No. 54/2018 which has come into effect by Central Goods and Service Tax (Twelfth Amendment), Rules 2018 with effect from 9th October, 2018 which reads as under: "G.S.R......(E). In exercise of the powers conferred by section 164 of the Central Goods and Services Tax Act, 2017 (12 of 2017), the Central Government hereby makes the following rules further to amend the Central Goods and Services Tax Rules, 2017, namely:- 1. (1) These rules may be called the Central Goods and Services Tax (Twelfth Amendment) Rules, 2018. (2) They shall come into force on the date of their publ....
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....ry, Part II, Section 3, Sub-section (i), vide number G.S.R 1320 (E), dated the 23rd October, 2017 or notification No. 41/2017-Integrated 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 has been availed; or (b) availed the benefit under notification No. 78/2017-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 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 except so far it relates to receipt of capital goods by such person against Export Promotion Capital Goods Scheme.". 35. On perusal of above notification, it is clear that same has come into effect from 9th October, 2018 and as such there is a mistake apparent on record in CAV judgment dated 20th October, 2020 wherein it is incorrectly stated that said notification has come into effect from 23rd Octobe....
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....th October 2017 provides for granting benefit of exemption from payment of duty and Explanation thereto states that, "Advance Authorization" means an authorization issued by the Director General of Foreign Trade under Chapter4 of the Foreign Trade Policy 2015-20 for import or domestic procurement of inputs on pre-import basis for physical exports. Therefore, as the petitioner has availed the benefits of AA License as per Notification No. 48/2017 CT (Rate) dated 23rd October, 2017 and has enjoyed the exemption of GST on the supply of the goods from the registered supplier for the purpose of export on fulfilling the conditions prescribed therein, the petitioner would not be entitled to the benefit of refund of IGST paid on the export of the goods. It appears that, thereafter, by Notification No. 39/2018 CT dated 4th September 2018 has substituted the sub-rule (10) of Rule96 w.e.f. 23rd October 2017, and notification No. 54/2018, the application of the substituted sub-rule (10) of Rule96 is made effective from 9th October, 2018, Therefore, the petitioner who has availed the benefit of the Notification No. 39/2018 would be entitled to get refund of IGST paid on input tax credit balance....