M/S Swastik International vs. Union Of INDIA
Original PDF →Facts
M/s Swastik International, a proprietorship concern registered under CGST Act, engaged in exporting agro food products and spices, filed a writ petition seeking sanction of refund of IGST amounting to Rs. 37,01,326/- paid on zero-rated supplies made vide shipping bills in July and August 2017. The petitioner contended that their customs broker inadvertently claimed a higher drawback rate and failed to mention the taxable value and IGST paid on certain shipping bills. The petitioner had filed GSTR-1 and GSTR-3B returns reflecting the IGST paid. The petitioner also sought interest on the withheld refund. Subsequently, the petitioner amended their petition to challenge specific letters and a circular, arguing they were ultra vires to the provisions of the IGST Act and CGST Act.
Held
The Court held that the petitioner was entitled to the refund of IGST paid on zero-rated supplies. The Court found that the petitioner had placed on record all the necessary details, including valid GSTR-1 and GSTR-3B returns for the relevant months, fulfilling the conditions stipulated under Rule 96 of the CGST Rules, 2017. Rule 96 deems shipping bills filed by an exporter as an application for refund of integrated tax paid on goods exported outside India, provided certain conditions are met, including the filing of valid returns. The Court noted that the petitioner had undisputedly furnished these returns. Therefore, the writ applicant was otherwise entitled to the refund of IGST as envisaged under the relevant provisions of the IGST Act, 2017. The Court directed the respondent authorities to immediately sanction the refund of IGST amounting to Rs. 37,10,326/- within two weeks and to pay interest at 9% from the date of raising the shipping bills until the actual date of realization of the refund.
Key Issues
1. Whether the petitioner is entitled to a refund of IGST paid on zero-rated supplies, considering the alleged inadvertent error by the customs broker in claiming drawback and not mentioning the taxable value and IGST on shipping bills? (Section 16(3)(b) of IGST Act, 2017, Section 54 of CGST Act, 2017, Rule 96 of CGST Rules, 2017). 2. Whether the impugned letters and circular are ultra vires the relevant provisions of the IGST Act and CGST Act? Petitioner's arguments: The petitioner argued that they are entitled to the refund of IGST paid on zero-rated supplies as per Section 16(3)(b) of the IGST Act and Section 54 of the CGST Act read with Rule 96 of the CGST Rules. They contended that the error in the shipping bills was due to the customs broker's inadvertence and that they had fulfilled all conditions for refund, including filing valid returns. They further argued that the impugned letters and circular were contrary to the statutory provisions. Revenue's arguments: The judgment does not record any specific arguments made by the respondent revenue authorities.
Sections Cited
Section 16(3)(b), Section 54, Rule 96
AI-generated summary — verify with the full judgment below
Cause title — parties, addresses and appearances
ORAL JUDGMENT (PER : HONOURABLE MS. JUSTICE NISHA M. THAKORE)
By way of this petition under Articles 226 and 227 of the Constitution of India, the writ applicant has prayed for the following C/SCA/6576/2021 JUDGMENT DATED: 09/02/2022 reliefs: “A. Your Lordships may be pleased to admit this petition. B. Your Lordships may be pleased to allow this petition. C.Your Lordships may be pleased to issue writ of mandamus or any other appropriate writ directing the respondent authorities to immediately sanction the refund of IGST aggregating to Rs.37,01,326/- paid in regard to the goods (Agro Food Products & Spices) exported i.e. “Zero Rated Supplies” made vide aforesaid shipping bills; D.Your Lordships may be pleased to direct the respondent authorities to pay interest @ 18% to the petitioner herein on the amount of refund of IGST mentioned hereinabove from the date of shipping bill up till the date on which the amount of refund is paid to the petitioner herein, as the same is arbitrarily and illegally withheld by the respondent authorities. E. Your Lordships may be pleased to grant an ex parte, ad interim order in favour of the petitioner herein in terms of prayer clause ‘C’ and ‘D’ hereinabove. F. Since the petitioner are constrained to approach Your Lordships by way of this petition only because of illegal act of respondent authorities, Your Lordships may be pleased to direct the respondent authorities to pay a cost of this litigation to the petitioner herein. G.Your Lordships may be pleased to grant such other and further relief/(s) that may be deemed fit and proper in the interest of justice in favour of the petitioner.” Before we delve into the facts of the case, it would be appropriate to note that subsequently the writ applicant has preferred the draft amendment, whereby the writ applicant has C/SCA/6576/2021 JUDGMENT DATED: 09/02/2022 prayed for the reliefs, which are reproduced hereinbelow: “C1. Your Lordships may be pleased to issue a writ of certiorari or mandamus or any other appropriate writ, quashing and setting aside letter dated 19.06.2019 (Annexure-F/1), letter dated 22.12.2020 (Annexure-I), both issued by respondent No.3 herein and also circular No.37/208-Cus dated 09.10.2018 issued from F.No.450/119/2017-Cus.IV (Annexure K) as the same are ultravires to the provisions of Section 16(3)(b) of the Integrated Goods and Service Tax Act, 2017 read with Section 54 of Central Goods and Service Tax Act, 2017 read with Rule 96 of Central Goods and Service Tax Rules, 2017.”
Brief facts which emerge from the record are as under:
1 The writ applicant is a proprietorship concern and is holding a valid registration under the CGST Act. The certificate of registration is placed on record at page 38, whereby it appears that the certificate of registration is issued on 19.09.2017 and the period of validity / liability starts from 01.07.2017.
2 The petitioner is engaged in exporting various agricultural food products and spices to the various countries outside India.
3 During the months of July and August, 2017, the writ applicant firm had exported the goods under the various invoices on payment of IGST of the amount of Rs.37,01,326/-. The writ applicant has produced various documents which includes GST invoices, export invoices, shipping bills, export general manifest and bill of lading. C/SCA/6576/2021 JUDGMENT DATED: 09/02/2022
4 Thus, the writ applicant being an exporter is entitled to “Zero Rated Supply” benefit as envisaged under Section 15 of the CGST Act.
5 The writ applicant has further placed on record the statutory return, more particularly, Form GSTR-1 and GSTR-3B for the monthS of July and August, 2017, reflects the payment of IGST paid by the writ applicant for the relevant months.
6 It is the case of the writ applicant that for the export made during the month of July, 2017, while the list of 16 shipping bills through Customs Broker had been furnished, it was subsequently realized that the Custom Broker of the writ applicant firm had failed to mention taxable value and integrated tax i.e. IGST paid by the writ applicant for the relevant shipping bills. The writ applicant firm realized that the Custom Broker had inadvertently claimed drawback at the higher rate by punching “A” as required under the Notification bearing No.131/2016- Custom (NT) dated 31.10.2016, which was subsequently amended vide Notification bearing No.59/2017-Custom (NT) dated 29.06.2017 and the Notification No.73/2017 – Custom (NT) dated 26.07.2017. Thus, the higher rate of 1% of value and attached invoices getting list of various declaration were inadvertently furnished except for one shipping bills. Sr. No. GST Invoice No. & Date Export Invoice No & Date Shippin g Bill No. & Date Export General Manifes t No. & Date Bill of Lading No & Date 01 . SWI/EXP/70/17-18 26/06/2017 SWI/EXP/70/17-18 26/06/2017 709729 9 129979 13/07/1 SMLMPAV700062700 05/07/2017 C/SCA/6576/2021 JUDGMENT DATED: 09/02/2022 01/07/1 7 7 02 . SWI/EXP/71/17-18 01/07/2017 SWI/EXP/71/17-18 01/07/2017 713085 7 03/07/1 7 130023 13/07/1 7 MOLU13903532963 09/07/2017 03 . SWI/EXP/76/17-18 01/07/2017 SWI/EXP/76/17-18 01/07/2017 716498 6 05/07/1 7 130023 13/07/1 7 MOLU13903540980 09/07/2017 04 . SWI/EXP/77/17-18 03/07/2017 SWI/EXP/77/17-18 03/07/2017 716498 9 05/07/1 7 130023 13/07/1 7 MOLU13903539572 09/07/2017 05 . SWI/EXP/77A/17-18 03/07/2017 SWI/EXP/77A/17- 18 03/07/2017 716498 8 05/07/1 7 130023 13/07/1 7 MOLU13903539572 09/07/2017 06 . SWI/EXP/62/17-18 04/07/2017 SWI/EXP/62/17-18 04/07/2017 714933 1 04/07/1 7 130786 19/07/1 7 769850302 15/07/2017 07 . SWI/EXP/74/17-18 05/07/2017 SWI/EXP/74/17-18 05/07/2017 717421 4 05/07/1 7 130018 19/07/1 7 SMLMPAV700071700 09/07/2017 08 . SWI/EXP/79/17-18 05/07/2017 SWI/EXP/79/17-18 05/07/2017 726555 3 11/07/1 7 130864 18/08/1 7 OOLU2590879510 13/07/2017 09 . SWI/EXP/82/17-18 07/07/2017 SWI/EXP/82/17-18 07/07/2017 721707 4 07/07/1 7 130864 18/08/1 7 GOSUPAV6044707 20/07/2017 10 . SWI/EXP/83/17-18 12/07/2017 SWI/EXP/83/17-18 12/07/2017 738340 3 15/07/1 7 131134 18/08/1 7 OOLU2590905880 20/07/2017 11 . SWI/EXP/87/17-18 14/07/2017 SWI/EXP/87/17-18 14/07/2017 738611 2 15/07/1 7 131134 18/08/1 7 GOSUPAV6045792 25/07/2017 12 . SWI/EXP/85/17-18 18/07/2017 SWI/EXP/85/17-18 18/07/2017 746417 7 19/07/1 7 131716 29/08/1 7 SMLMPAV700076500 24/07/2017 13 . SWI/EXP/84/17-18 21/07/2017 SWI/EXP/84/17-18 21/07/2017 753770 4 22/07/1 7 131777 18/08/1 7 OOLU2591330100 28/07/2017 14 . SWI/EXP/88/17-18 21/07/2017 SWI/EXP/88/17-18 21/07/2017 756013 5 24/07/1 7 131777 29/08/1 7 PIPCB17001604 28/07/2017 15 . SWI/EXP/94/17-18 21/07/2017 SWI/EXP/94/17-18 21/07/2017 752862 2 22/07/1 7 131777 29/08/1 7 PIPCB17001605 28/07/2017 16 SWI/EXP/72/17-18 SWI/EXP/72/17-18 764239 131929 PIPCB17001652 C/SCA/6576/2021 JUDGMENT DATED: 09/02/2022 . 25/07/2017 25/07/2017 5 27/07/1 7 28/08/1 7 03/08/2017 17 . SWI/EXP/75/17-18 27/07/2017 SWI/EXP/75/17-18 27/07/2017 764240 2 27/07/1 7 131929 28/08/1 7 PIPCB17001645 03/08/2017 18 . SWI/EXP/61/17-18 10/07/2017 SWI/EXP/61/17-18 10/07/2017 724955 4 10/07/1 7 130864 18/08/1 7 PIPCB17001538 13/07/2017 19 . SWI/EXP/73/17-18 03/08/2017 SWI/EXP/73/17-18 03/08/2017 783381 7 04/08/1 7 132642 13/09/1 7 PIPCB17001684 09/08/2017 20 . SWI/EXP/93/17-18 05/08/2017 SWI/EXP/93/17-18 05/08/2017 784892 6 05/08/1 7 132432 29/08/1 7 HLCUPA4170800119 14/08/2017
7 Upon realizing the aforesaid mistake, the writ applicant through his agent had approached the Assistant Commissioner, Custom House, Pipavav and had requested for issuance of amended certificate with respect to wrong amount of taxable value and IGST tax value entry in these specified shipping bills.
8 The Assistant Commissioner, Customs House, Pipavav, had examined the aforesaid documents and had permitted the amendment by issuing certificate of amendment whereby the particulars of tax value of IGST amount were ordered to be corrected in respect of 16 shipping bills furnished by the writ applicant firm during the month of July, 2017 and August, 2017. The writ applicant firm simultaneously seems to have made representation to the Deputy / Assistant Commissioner, Customs House, Pipavav, to sanction of aforesaid shipping bills and claimed refund of IGST of an amount of Rs.31,08,988/- and Rs.5,92,338/- (total Rs.37,01,326/-) for the month of July, 2017 and August, 2017. The writ applicant had also submitted supporting documents which includes copies of 16 shipping bills and amendment certificate dated 01.09.2017 as well as copy of undertaking, copies C/SCA/6576/2021 JUDGMENT DATED: 09/02/2022 of challan issued by the Customs Authority and calculation sheet for differential drawback return.
9 Attention of the Deputy / Assistant Commissioner, Customs House, Pipavav was also drawn to the fact that the writ applicant firm had surrendered differential excess of drawback of the amount of Rs.60,05,893,31/- with interest amount of Rs.31,097.21 and the same has been duly acknowledged by issuing challans during period from 08.09.2017 to 20.12.2017.
10 It appears that inspite of the aforesaid facts being brought to the notice of the Office of Deputy / Assistant Commissioner of Customs, Pipavav, the Deputy Commissioner, Customs House, Pipavav, vide letter dated 19.06.2019 rejected the claim of the refund of IGST raised by the writ applicant by referring to the Circular bearing No.37/2018-Customs dated 09.10.2018 (wrongly referred as date 09.10.2019) thereby stating that the exporter once having availed of an amount of drawback at higher rate in place of IGST refund than subsequently, the refund of IGST cannot be granted. The Deputy Commissioner, Custom House, Pipavav had further relied upon the EDI System which does not permit the Authority to facilitate amending of shipping bills once LEO is granted.
11 The writ applicant once again approached the respondent Authorities vide representation dated 25.06.2019, as received by the respondent Authorities on 16.07.2019 thereby drawing attention of the respondent Authorities to the fact that the said circular, so referred, is contrary to its own earlier Circular. Further attention of the respondent Authorities was also drawn to the provisions of the Act, more particularly, Sections 54 and 56 of the C/SCA/6576/2021 JUDGMENT DATED: 09/02/2022 CGST Act, 2017 as well as Rule 96 of the CGST Rules and had submitted that the said Circular cannot travel beyond the provisions of the IGST Act, 2017 and CGST Act, 2017. So far as, reasons assigned with regard to EDI system is concerned, the writ applicant requested the respondent Authorities to refund sanction by manually processing their application.
12 The writ applicant again preferred representation dated 04.12.2020, thereby making request of refund of IGST of “Zero Rated Supply” relating to 20 shipping bills for the month of July, 2017 and August, 2017. The particulars of which were reproduced in the said representation. The writ applicant had further clarified that inadvertently higher rate of drawback @ 1% was availed by punching “A” instead of lower rate of drawback @ 0.15% by punching “B”. However, inadvertently the drawback amount has also been realized and is corrected in the account of respondent Custom Department. Thus, in absence of any valid reason, considering tremendous financial difficulty being faced by the writ applicant, the earnest request was made to the respondent Authorities to credit the amount of refund of IGST to the tune of Rs.37,01,326/-.
13 Without properly appreciating the aforesaid particulars in light of relevant provisions of law, the respondent Authorities reiterated its earlier stance once again vide letter dated _____relying upon the Circular bearing No.37/2018 – Custom dated 09.10.2018 (wrongly referred as dated 09.10.2019) as well as the reference was made to the EDI systems not permitting the respondent Authorities to process the amending shipping bills manually once the LEO is granted and thereby refused to consider the claim of the writ applicant for IGST refund. In such C/SCA/6576/2021 JUDGMENT DATED: 09/02/2022 circumstances, the writ applicant has approached this Court with the relief so sought for.
We have heard Mr. D.K. Trivedi, the learned counsel appearing for the writ applicant Firm as well as Mr. Nikunt Raval, the learned senior standing counsel for the respondent Authorities. Only limited controversy involved in the present writ application is regards non-refund of the IGST by the respondent Authorities in light of Circular bearing No.37/2018 dated 09.10.2018 and the EDI Notification bearing No.131/2016 Custom (NT) dated 31.10.2016 which has been subsequently amended by Notification bearing No.59/2017 dated 29.06.2017 and has submitted that the writ applicant is not entitled to the refund of IGST once the right of claim of higher rate of duty drawback during transit period of tax raised and necessary obligations were created. The judgment of this Court in the case of Amit Cotton (Supra) was further carried in appeal by filing Special Leave Petition vide Diary No.5502 of 2021 wherein the Supreme Court vide order dated 22.03.2021 was C/SCA/6576/2021 JUDGMENT DATED: 09/02/2022 pleased to dismiss the SLP on the ground of delay but without expressing any opinion on the question of law which was raised by the respondent Department. Alternatively, the respondent Authority has relied upon the Notification bearing No.13/2017 – Central Tax dated 28.06.2017 and has urged that the rate of interest as recommended by the GST Council @ 6% may be considered, this Court is considering the goods of the writ applicant for the refund of IGST along with interest.
The writ applicant has objected the aforesaid stance of the respondent Department by filing rejoinder affidavit and has further drawn attention of this Court that the action of the respondent authority of withholding the refund even after the amendment of shipping bill is arbitrary and is required to be quashed and set aside. The reasons assigned by the respondent Authorities of withholding as regards the EDI System is concerned, the same is fallacious, more particularly, in view of the settled legal position as held by this Court in the case of Amit Cotton (Supra). Further, the attention of this Court was drawn to the fact that the reliance upon Circular bearing No.37/2018 – Custom dated 09.10.2018 and had also been demonstrated by this Court in the case of Amit Cotton by relying upon the decision of the Supreme Court in the case of Commissioner of Central Excise, Bolpur v. Ratan Melting and Wire Industries, reported in 2008(12) S.T.R. 416 (S.C.), thereby holding that the circulars and instructions issued by CBIC are merely instructions for understanding of statutory provisions and are not binding on the Court. The Circulars which are contrary to the statutory provisions has no existence in the eye of law. The contention of this Court was also drawn to the decision in the case of J.K.Lakshmi Cement Limited v. Commercial Tax Officer, Pali, reported in 2018(14) G.S.T.L. 497 (S.C.), to contend that C/SCA/6576/2021 JUDGMENT DATED: 09/02/2022 power to issue circulars is for just, proper and efficient management of the work and in public interest. Such power for proper administration of fiscal law is utilized for avoiding undue hardships to the assessee. Such circulars may be binding on the authorities administration administering the enactment but at the same time cannot alter the provisions of enactment to the Department of assessee. Learned advocate had therefore, submitted to quash and set aside the Circular bearing No.37/2018- Custom dated 09.10.2018. So far as to stance of respondent Department of withholding of IGST refund by referring Circular bearing No.37/2018-Custom dated 09.10.2018 is concerned, is completely erroneous. This Court has considered the aforesaid circular in the similar set of facts in the case of Amit Cotton (Supra). Ultimately, this Court after taking into consideration the relevant provision of law and the settled legal position held that:
“34. We take notice of two things so far as the circular is concerned. Apart from being merely in the form of instructions or guidance to the concerned department, the circular is dated 9th October 2018, whereas the export took place on 27th July 2017. Over and above the same, the circular explains the provisions of the drawback and it has nothing to do with the IGST refund. Thus, the circular will not save the situation for the respondents. We are of the view that Rule 96 of the Rules, 2017, is very clear.”
Undisputedly, the writ applicant is holding the valid registration No. under the Goods and Service Tax Act, 2017. The writ applicant being an exporter is entitled to the benefit as envisaged under the provisions of GST / IGST Act, 2017. Admittedly, the goods are exported outside India for the relevant months of July, 2017 and August, 2017 as emerged from the C/SCA/6576/2021 JUDGMENT DATED: 09/02/2022 various documents in the nature of GST invoices, export invoices, shipping bills, export general manifest bills, bill of lading, one cannot lose sight of the fact that the at the relevant stage, the writ applicant seems to have paid IGST @ 5% as reflected in the aforesaid bill. Bare reading of the contents of the shipping bills referred to the fact that the declaration has also been made by the writ applicant firm about its intent to avail reward as made available under Mercantile Scheme. Thus, undisputedly, the goods being exported out of India, the same are to be treated and termed as “Zero Rated Supplies” as provided under Section 16 of the IGST Act. At this stage, it would be germane to reproduce the relevant provision of law. Section 16 of the IGST Act, 2017 reads thus:
“16. Zero rated supply.-- (1) “zero rated supply” means any of the following supplies of goods or services or both, namely:–– (a) export of goods or services or both; or (b) supply of goods or services or both to a Special Economic Zone developer or a Special Economic Zone unit. (2) Subject to the provisions of sub-section (5) of section 17 of the Central Goods and Services Tax Act, credit of input tax may be availed for making zero-rated supplies, notwithstanding that such supply may be an exempt supply. (3) A registered person making zero rated supply shall be eligible to claim refund under either of the following options, namely:–– (a) he may supply goods or services or both under bond or Letter of Undertaking, subject to such conditions, safeguards and procedure as may be prescribed, without payment of integrated tax and claim refund of unutilised input tax credit; or (b) he may supply goods or services or both, subject to such conditions, safeguards and procedure as may be prescribed, on payment of integrated tax and claim C/SCA/6576/2021 JUDGMENT DATED: 09/02/2022 refund of such tax paid on goods or services or both supplied, in accordance with the provisions of section 54 of the Central Goods and Services Tax Act or the rules made thereunder.” According to the aforesaid provisions, a registered person making “Zero Rated Supplies” has been provided an option to claim refund of IGST in accordance with Section 16(3)(b) the registered person, thus becomes eligible to claim refund either on supply of the goods or service or both on payment of integrated tax and supply in accordance with law and subject to Section 54 of the CGST Act. Section 54 of the CGST Act reads thus:
“54. Refund of tax.-- (1) Any person claiming refund of any tax and interest, if any, paid on such tax or any other amount paid by him, may make an application before the expiry of two years from the relevant date in such form and manner as may be prescribed: Provided that a registered person, claiming refund of any balance in the electronic cash ledger in accordance with the provisions of sub-section (6) of section 49, may claim such refund in the return furnished under section 39 in such manner as may be prescribed. (2) A specialised agency of the United Nations Organisation or any Multilateral Financial Institution and Organisation notified under the United Nations (Privileges and Immunities) Act, 1947, Consulate or Embassy of foreign countries or any other person or class of persons, as notified under section 55, entitled to a refund of tax paid by it on inward supplies of goods or services or both, may make an application for such refund, in such form and manner as may be prescribed, before the expiry of six months from the last day of the quarter in which such supply was received. (3) Subject to the provisions of sub-section (10), a registered person may claim refund of any unutilised input tax credit at the end of any tax period: Provided that no refund of unutilised input tax credit shall be allowed in cases other than–– C/SCA/6576/2021 JUDGMENT DATED: 09/02/2022 (i) zero rated supplies made without payment of tax; (ii) where the credit has accumulated on account of rate of tax on inputs being higher than the rate of tax on output supplies (other than nil rated or fully exempt supplies), except supplies of goods or services or both as may be notified by the Government on the recommendations of the Council: Provided further that no refund of unutilised input tax credit shall be allowed in cases where the goods exported out of India are subjected to export duty: Provided also that no refund of input tax credit shall be allowed, if the supplier of goods or services or both avails of drawback in respect of central tax or claims refund of the integrated tax paid on such supplies. (4) The application shall be accompanied by— (a) such documentary evidence as may be prescribed to establish that a refund is due to the applicant; and (b) such documentary or other evidence (including the documents referred to in section 33) as the applicant may furnish to establish that the amount of tax and interest, if any, paid on such tax or any other amount paid in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such tax and interest had not been passed on to any other person: Provided that where the amount claimed as refund is less than two lakh rupees, it shall not be necessary for the applicant to furnish any documentary and other evidences but he may file a declaration, based on the documentary or other evidences available with him, certifying that the incidence of such tax and interest had not been passed on to any other person. (5) If, on receipt of any such application, the proper officer is satisfied that the whole or part of the amount claimed as refund is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund referred to in section 57. (6) Notwithstanding anything contained in sub-section (5), the proper officer may, in the case of any claim for refund on account of zero-rated supply of goods or services or both made by registered persons, other than such category of registered persons as may be notified by the Government on the recommendations of the Council, refund on a provisional basis, ninety per cent. of the total amount so claimed, excluding the amount of input tax C/SCA/6576/2021 JUDGMENT DATED: 09/02/2022 credit provisionally accepted, in such manner and subject to such conditions, limitations and safeguards as may be prescribed and thereafter make an order under subsection (5) for final settlement of the refund claim after due verification of documents furnished by the applicant. (7) The proper officer shall issue the order under subsection (5) within sixty days from the date of receipt of application complete in all respects. (8) Notwithstanding anything contained in sub-section (5), the refundable amount shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to-- (a) refund of tax paid on zero-rated supplies of goods or services or both or on inputs or input services used in making such zero-rated supplies; (b) refund of unutilised input tax credit under subsection (3); (c) refund of tax paid on a supply which is not provided, either wholly or partially, and for which invoice has not been issued, or where a refund voucher has been issued; (d) refund of tax in pursuance of section 77; (e) the tax and interest, if any, or any other amount paid by the applicant, if he had not passed on the incidence of such tax and interest to any other person; or (f) the tax or interest borne by such other class of applicants as the Government may, on the recommendations of the Council, by notification, specify. (9) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any court or in any other provisions of this Act or the rules made thereunder or in any other law for the time being in force, no refund shall be made except in accordance with the provisions of sub-section (8). (10) Where any refund is due under sub-section (3) to a registered person who has defaulted in furnishing any return or who is required to pay any tax, interest or penalty, which has not been stayed by any court, Tribunal or Appellate Authority by the specified date, the proper officer may— (a) withhold payment of refund due until the said person has furnished the return or paid the tax, interest or penalty, as the case may be; (b) deduct from the refund due, any tax, interest, penalty, fee or any other amount which the taxable person is liable C/SCA/6576/2021 JUDGMENT DATED: 09/02/2022 to pay but which remains unpaid under this Act or under the existing law. Explanation.––For the purposes of this sub-section, the expression “specified date” shall mean the last date for filing an appeal under this Act. (11) Where an order giving rise to a refund is the subject matter of an appeal or further proceedings or where any other proceedings under this Act is pending and the Commissioner is of the opinion that grant of such refund is likely to adversely affect the revenue in the said appeal or other proceedings on account of malfeasance or fraud committed, he may, after giving the taxable person an opportunity of being heard, withhold the refund till such time as he may determine. (12) Where a refund is withheld under sub-section (11), the taxable person shall, notwithstanding anything contained in section 56, be entitled to interest at such rate not exceeding six per cent. as may be notified on the recommendations of the Council, if as a result of the appeal or further proceedings he becomes entitled to refund. (13) Notwithstanding anything to the contrary contained in this section, the amount of advance tax deposited by a casual taxable person or a non-resident taxable person under sub-section (2) of section 27, shall not be refunded unless such person has, in respect of the entire period for which the certificate of registration granted to him had remained in force, furnished all the returns required under section 39. (14) Notwithstanding anything contained in this section, no refund under sub-section (5) or sub-section (6) shall be paid to an applicant, if the amount is less than one thousand rupees. Explanation.—For the purposes of this section,–– (1) “refund” includes refund of tax paid on zero-rated supplies of goods or services or both or on inputs or input services used in making such zero-rated supplies, or refund of tax on the supply of goods regarded as deemed exports, or refund of unutilised input tax credit as provided under sub-section (3). (2) “relevant date” means— (a) in the case of goods exported out of India where a refund of tax paid is available in respect of goods C/SCA/6576/2021 JUDGMENT DATED: 09/02/2022 themselves or, as the case may be, the inputs or input services used in such goods,–– (i) if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India; or (ii) if the goods are exported by land, the date on which such goods pass the frontier; or (iii) if the goods are exported by post, the date of despatch of goods by the Post Office concerned to a place outside India; (b) in the case of supply of goods regarded as deemed exports where a refund of tax paid is available in respect of the goods, the date on which the return relating to such deemed exports is furnished; (c) in the case of services exported out of India where a refund of tax paid is available in respect of services themselves or, as the case may be, the inputs or input services used in such services, the date of–– (i) receipt of payment in convertible foreign exchange, where the supply of services had been completed prior to the receipt of such payment; or (ii) issue of invoice, where payment for the services had been received in advance prior to the date of issue of the invoice; (d) in case where the tax becomes refundable as a consequence of judgment, decree, order or direction of the Appellate Authority, Appellate Tribunal or any court, the date of communication of such judgment, decree, order or direction; (e) in the case of refund of unutilised input tax credit under sub-section (3), the end of the financial year in which such claim for refund arises; (f) in the case where tax is paid provisionally under this Act or the rules made thereunder, the date of adjustment of tax after the final assessment thereof; (g) in the case of a person, other than the supplier, the date of receipt of goods or services or both by such person; and (h) in any other case, the date of payment of tax.”
So far as Rule 96 of the CGST Rule, 2017 are concerned, it provides that the shipping bills filed by an exporter of goods shall C/SCA/6576/2021 JUDGMENT DATED: 09/02/2022 be deemed to be an application for refund of integrated tax paid on the goods export outside India and such application shall be deemed to have been filed only when the person in charge of conveyance carrying exported goods duly filed and exported manifestly or an export report covering the date and proof and shipping bill and date of export and the application must have furnished the valid return the in the Form GSTR 1 and GSTR-3B. As noted earlier, undisputedly, the writ applicant has placed on record the aforesaid details as well as has also furnished the valid return in Form GSTR-3B for the relevant months of July, 2017 and August, 2017. Thus, in view of the aforesaid relevant materials, we find that the writ applicant is otherwise entitled to the refund of IGST as envisaged under the relevant provisions of IGST Act, 2017. 8. In the result, the petition succeeds. We hereby direct the respondent Authority to immediately sanction the refund of IGST aggregating to an amount of Rs. 37,10,326/- in regard to the shipping bills exported as “Zero Rated Supplies” within a period of two weeks from the date of receipt of this order. We further direct the respondent authority to pay the interest @ 9% to the writ applicant from the date of raising of shipping bills till the actual date of realization of the aforesaid amount of refund. The petition stands disposed of accordingly. (J. B. PARDIWALA, J) (NISHA M. THAKORE,J) Y.N. VYAS
Reproduced from the public record of the Gujarat High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.