Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH THURSDAY, THE 27TH DAY OF JULY 2023 / 5TH SRAVANA, 1945 WP(C) NO. 30645 OF 2021 PETITIONER/S:
BINDU KRISHNA KUMAR, AGED 48 YEARS PROPRIETRESS, CALGON SCIENTIFIC CO., 49/1174, 'VINAYAKA', PONEKKARA ROAD, AIMS P.O., EDAPPALLY, ERNAKULAM DISTRICT- 682041.
BY ADVS.
R.MURALEEDHARAN K.P.JOSE PIOUS RESPONDENT/S:
1 CENTRAL TAX OFFICER-1, CENTRAL TAX AND CENTRAL EXCISE, ERNAKULAM DIVISION, CENTRAL EXCISE BHAVAN, KATHRIKADAVU, KALOOR, KOCHI-682017.
2 THE ASSISTANT COMMISSIONER, CENTRAL TAX AND CENTRAL EXCISE, ERNAKULAM DIVISION, CENTRAL EXCISE BHAVAN, KATHRIKADAVU, KALOOR, KOCHI-682017.
3 PRINCIPAL COMMISSIONER, CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS, GST POLICY WING, GOVERNMENT OF INDIA, MINISTRY OF FINANCE, NEW DELHI- 110001.
4 UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, GOVERNMENT OF INDIA, NEW DELHI-110001.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO.30645 OF 2021 2 JUDGMENT 1.
Petitioner has approached this Court, being aggrieved by the fact that the petitioner's claim for refund of accumulated input tax credit on account of supply of goods at a concessional rate has been rejected by Exts.P12 to P14 orders.
2.
When this matter is taken up for consideration today, it is the submission of the learned counsel appearing for the petitioner that the matter is now covered by Circular No.173/05/2022-GST dated 06.07.2022. Specific reference is made to the modification to Circular No.135/05/2020-GST dated 31.03.2020 through Paragraph No.4 of the aforesaid circular dated 06.07.2022 which to the extent it is relevant reads as follows:- ‘’ 3.3 There may however, be cases where though inputs and output goods are same but the output supplies are made under a concessional notification due to which the rate of tax on output supplies is less than the rate of tax on inputs. In such cases, as the rate of tax of output supply is less than the rate of tax on inputs at the same point of time due to supply of goods by the supplier
WP(C) NO.30645 OF 2021 3 under such concessional notification, the credit accumulated on account of the same is admissible for refund under the provisions of clause (ii) of the first proviso to sub-section (3) of Section 54 of the CGST Act, other than the cases where output supply is either Nil rated or fully exempted, and also provided that supply of such goods or services are not notified by the Government for their exclusion from refund of accumulated ITC under the said clause.’’ 3.
Learned counsel appearing for the respondent Department submits that if it is the case of the petitioner that the claim is now covered in terms of the Circular dated 06.07.2022, the matter may be directed to be reconsidered by the authority also taking into account the provisions of the aforesaid Circular and Clause (ii) of the first proviso to Sub Section (3) of Section 54 of the CGST Act.
4.
Having regard to the submissions as above, this writ petition is ordered, remanding the matter for reconsideration by the respondent in terms of the provisions of section 54 noticed above, and also taking into account the provisions of the Circular dated 06.07.2022. To enable such reconsideration, Exts.P12 to P14 orders will stand set aside.
The matter shall be finalised by the respondent after
WP(C) NO.30645 OF 2021 4 affording an opportunity of being heard to the petitioner, within two months from the date of receipt of a certified copy of this judgment.
The writ petition is disposed of as above.
Sd/- DINESH KUMAR SINGH JUDGE Shg
WP(C) 30645/2021 APPENDIX OF WP(C) 30645/2021 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE NOTIFICATION NO.45/2017-CENTRAL TAX (RATE) DATED 14/11/2017.
Exhibit P2 TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER FOR REFUND ACCUMULATED ITC FOR OCT. 2019 AND THE RECEIPT, DATED 30/09/2021.
Exhibit P3 TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER FOR REFUND ACCUMULATED ITC FOR NOV. 2019 AND THE RECEIPT, DATED 04/10/2021.
Exhibit P4 TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER FOR REFUND ACCUMULATED ITC FOR DEC. 2019 AND THE RECEIPT, DATED 26/10/2021.
Exhibit P5 TRUE COPY OF THE SHOW CAUSE NOTICE ISSUED BY THE 2ND RESPONDENT ON RECEIPT OF EXT.P2.
Exhibit P6 TRUE COPY OF THE SHOW CAUSE NOTICE ISSUED BY THE 2ND RESPONDENT ON RECEIPT OF EXT.P3.
Exhibit P7 TRUE COPY OF THE SHOW CAUSE NOTICE ISSUED BY THE 2ND RESPONDENT ON RECEIPT OF EXT.P4.
Exhibit P8 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER TO EXT.P5 NOTICE, AND ITS ACKNOWLEDGMENT, DATED 17/11/2021.
Exhibit P9 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER TO EXT.P6 NOTICE, AND ITS ACKNOWLEDGMENT, DATED 29/11/2021.
Exhibit P10 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER TO EXT.P5 NOTICE, AND ITS ACKNOWLEDGMENT, DATED 29/11/2021.
Exhibit P11 TRUE COPY OF THE CIRCULAR NO. 135/05/2020-GST ISSUED UNDER SEC.106(1) DATED 31/03/2020.
Exhibit P12 TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT, REJECTING EXT.P2 APPLICATION, DATED 26/11/2021.
Exhibit P13 TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT, REJECTING EXT.P3 APPLICATION, DATED 26/11/2021.
Exhibit P14 TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT, REJECTING EXT.P4 APPLICATION, DATED 26/11/2021.
Exhibit P15 TRUE COPY OF THE JUDGMENT OF THE HON'BLE GAUHATI HIGH COURT IN WPC NO.3878/2021 DATED 02/09/2021.