M/S Associated Scientific Company v. Deputy Commissioner
Original PDF →IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. THUR AY, THE 14TH DAY OF JULY 2022 / 23RD ASHADHA, 1944 WP(C) NO. 7137 OF 2022 PETITIONER/S: M/S ASSOCIATED SCIENTIFIC COMPANY GROUND FLOOR, 33/1816A1 NEW NO 46/2958A, MADAPPATTUPARAMBIL BUILDING , ARKAKADAVU ROAD, EDAPPALLY SOUTH, ERNAKULAM, KERALA-682 028, REPRESENTED BY ITS MANAGING PARTNER, SRI. PALANI PAKSHEENDRA KUMAR. BY ADVS. ANIL D. NAIR TELMA RAJU EDATHARA VINEETA KRISHNAN ARAVIND SREEKUMAR RESPONDENT/S: DEPUTY COMMISSIONER CENTRAL TAX & CENTRAL EXCISE, ERNAKULAM DIVISION, 4TH FLOOR, CENTRAL EXCISE BHAVAN, KATHRIKADAVU, ERNAKULAM, KERALA-682 017 BY ADV SMT.PREETHA S. NAIR, SC, CENTRAL BOARD OF EXCISE AND CUSTOMS THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 7137 OF 2022 2 JUDGMENT
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 Ext.P8 order.
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 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.’’
Learned counsel appearing for the respondent Department submits that if it is the case of the petitioner that
WP(C) NO. 7137 OF 2022 3 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.
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, Ext.P8 order will stand set aside. The matter shall be finalised by the respondent after 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. GOPINATH P. JUDGE ajt
WP(C) NO. 7137 OF 2022 4 APPENDIX OF WP(C) 7137/2022 PETITIONER EXHIBITS Exhibit P1OF THE GST REGISTRATION OF THE PETITIONER DATED 16.7.2018 Exhibit P2OF NOTIFICATION NO 45/2017-CENTRAL TAX A9RATE) DATED 14.11.2017, ISSUED BY THE MINISTRY OF FINANCE Exhibit P3OF THE APPLICATION RECEIPT FOR REFUND APPLICATION IN GST RED-01 DATED 7.12.2021 Exhibit P4OF SHOW CAUSE NOTICE DATED 21.1.2022 Exhibit P5OF CIRCULAR NO 125/44/2019-GST DATED 18.11.2019 Exhibit P6OF CIRCULAR NO 135/05/2020-GST DATED 31.3.2020 Exhibit P7OF REPLY IN FORM GST RED-09 DATED 28.1.2022 Exhibit P7(a)OF THE DECISION OF THE HON'BLE GAUHATI HIGH COURT REPORTED IN (2021) 94 GSTRI (GAU) Exhibit P8OF THE UNDATED ORDER CAPTIONED AS REFUND SANCTION ORDER ISSUED BY THE RESPONDENT
Reproduced from the public record of the Kerala High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.