Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P.
FRIDAY, THE 16TH DAY OF DECEMBER 2022 / 25TH AGRAHAYANA, 1944 WP(C) NO. 23646 OF 2022 PETITIONER:
FCI OEN CONNECTORS LTD, VETTICKAL-THIRUVANIYOOR ROAD, MULANTHURUTHY, KOCHI-682 314, REPRESENTED BY ITS DIRECTOR, MR.G.RAJAMANI.
BY ADVS.
KARTHIK S. NAIR PRABHAKARAN P.M.
RESPONDENTS:
1 UNION OF INDIA, REPRESENTED BY REVENUE SECRETARY, MINISTRY OF FINANCE, NORTH BLOCK, NEW DELHI – 110 001.
2 DEPUTY COMMISSIONER , CENTRAL TAX AND CENTRAL EXCISE KAKKANAD DIVISION GST BHAWAN, KATHRIKADAVU, KALOOR, KOCHI-682 017.
3 ASSISTANT COMMISSIONER OF CUSTOMS OFFICE OF THE COMMISSIONER OF CUSTOMS, CUSTOMS HOUSE, WILLINGDON ISLAND, COCHIN-682 009.
4 COMMISSIONER OF CENTRAL TAX AND CENTRAL EXCISE CENTRAL REVENUE BUILDING, I.S. PRESS ROAD, PIN – 682 018.
5 COMMISSIONER OF CUSTOMS, CUSTOMS HOUSE, WILLINGDON ISLAND, COCHIN-682 009.
6 CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS, THROUGH CHAIRMAN, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, GOVERNMENT OF INDIA NORTH BLOCK, NEW DELHI, PIN – 110 001.
W.P.(C)No.23646/2022 2 7 GOODS AND SERVICES TAX COUNCIL, THROUGH SECRETARY, 5TH FLOOR, TOWER-II, JEEVAN BHARTI BUILDING, JANPATH ROAD, CONNAUGHT PLACE, NEW DELHI - 110 001.
BY ADV P.G.JAYASHANKAR OTHER PRESENT:
ADV.LAKSHMIKUMARAN SRIDHARAN (SR.)
FOR THE PETITIONER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)No.23646/2022 3 JUDGMENT The petitioner imported certain goods under Advance License without payment of customs duties. These goods were to be used as raw-materials for the purposes of export of finished products. On account of certain restrictions in place during the Covid-19 pandemic, the petitioner could not complete the export obligation completely within time. The petitioner has discharged the duties of customs and additional duties of customs etc. on the goods which were initially imported and which did not form part of the export compliance. These duties were paid after coming into force of the GST regime. The petitioner had filed Exts.P12 and P13 applications for refund, which have been returned by the 2nd respondent through Exts.P1 and P1(a), finding that the claim for refund is not covered under Section 142 of the CGST Act.
2.
Adv. Lakshmikumaran Sridharan, the leaned counsel appearing for the petitioner would submit that in cases of duties paid after coming into force the GST regime, the claim for refund can be entertained only in terms of Section 142(3) CGST Act and cannot form part of the transitional credit scheme. It is submitted that this issue stands covered in favour of the petitioner by series
W.P.(C)No.23646/2022 4 of judgment of the Madras High Court and the Tribunals.
3.
Adv. P.G.Jayashankar, the learned standing counsel appearing for the respondent department states that if the petitioner resubmits the applications for refund, the same will be considered in accordance with law, also having due regard to the judgments which may be relied upon by the petitioner.
4.
Having heard the learned counsel for the petitioner and the learned standing counsel appearing for the respondent department, this writ petition will stand disposed of directing that if the petitioner resubmits the applications for refund in respect of which Exts.P1 and P1(a) letters have been issued to it, the same shall be considered in accordance with law and having due regard to any judgments that may be placed by the petitioner. If the petitioner resubmits the claims for refund on or before 30-12-2022, the competent amount the respondents shall consider the same and pass appropriate orders thereon within a period of three months from 30-12-2022.
Sd/- GOPINATH P.
JUDGE ats
W.P.(C)No.23646/2022 5 APPENDIX OF WP(C) 23646/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE IMPUGNED LETTER WITH DIN 20220458T1050000BC82 DATED 04.04.2022 ISSUED BY 2ND RESPONDENT Exhibit P1(a) TRUE COPY OF THE IMPUGNED LETTER WITH DIN 2022458T10500113035 DATED 04.04.2022 ISSUED BY 2ND RESPONDENT Exhibit P2 TRUE COPY OF THE LETTER WITH DIN 20220158MB000044104C DATED 19.01.2022 ISSUED BY 3RD RESPONDENT Exhibit P2(a) TRUE COPY OF THE LETTER WITH DIN 20220258MB0000550020 DATED 10.02.2022 ISSUED BY 3RD RESPONDENT Exhibit P3 TRUE COPY OF SAMPLE BILL OF ENTRY Exhibit P4 TRUE COPY OF SAMPLE ADVANCE AUTHORIZATION WHICH WAS REGULARIZED BY THE PETITIONER Exhibit P5 TRUE COPY OF SAMPLE CHALLAN DATED 16/03/2021 Exhibit P6 TABLE SHOWING DETAILS OF THE 16 ADVANCE AUTHORIZATIONS WHICH WERE REGULARIZED BY THE PETITIONER Exhibit P7 TRUE COPY OF THE SAMPLE EXPORT OBLIGATION DISCHARGE CERTIFICATE Exhibit P8 TRUE COPY OF SAMPLE ADVANCE AUTHORIZATION IN RESPECT OF WHICH THE EO WAS FULFILLED BY THE PETITIONER BUT DUTY PAID ON WASTAGE Exhibit P9 TRUE COPY OF THE SAMPLE CHALLAN DATED 16/03/2021 Exhibit P10 TABLE SHOWING DETAILS OF THE 12 ADVANCE AUTHORIZATIONS IN RESPECT OF WHICH THE PETITIONER HAS PAID THE DUTY SAVED ON THE INPUTS PERTAINING TO THE EXCESS WASTE GENERATED
W.P.(C)No.23646/2022 6 Exhibit P11 TRUE COPY OF SAMPLE EXPORT OBLIGATION DISCHARGE CERTIFICATE Exhibit P12 TRUE COPY OF THE SAMPLE REFUND CLAIM Exhibit P13 TRUE COPY OF THE LETTER DATED 21.12.2021 Exhibit P14 COPY OF THE SAMPLE REFUND CLAIM FILED BEFORE THE 2ND RESPONDENT Exhibit P15 TRUE COPY OF THE SAMPLE BILL OF ENTRY Exhibit P16 TRUE COPY OF ORDER-IN-ORIGINAL BEARING NO.
DIV-VII/41/RR KABEL/REF/17-18 DATED 20.06.2018 PASSED IN VADODARA COMMISSIONERATE IN THE CASE OF RR KABEL Exhibit P17 TRUE COPY OF ORDER-IN-ORIGINAL NO.
DC/CE/REFUND-2/JPR/2019 DATED 14.02.2020 PASSED IN JAJPUR (ODISHA) COMMISSIONERATE IN THE CASE OF JINDAL STAINLESS LTD.
Exhibit P18 TRUE COPY OF ORDER-IN-ORIGINAL NO.
DC/CE/REFUND-3/JPR/2019 DATED 14.02.2020 PASSED IN JAJPUR (ODISHA) COMMISSIONERATE IN THE CASE OF JINDAL STAINLESS LTD.
Exhibit P19 TRUE COPY OF ORDER-IN-APPEAL NO. IND-EXCUS- 000-APP-018-20-21 DATED 08.07.2020 PASSED BY COMMISSIONER (APPEALS), CUSTOMS, CGST AND CENTRAL EXCISE, INDORE IN THE CASE OF SHAKTI PUMPS (INDIA) LTD.