Home Case Index All Cases GST GST + Commissioner GST - 2021 (1) TMI Commissioner This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (1) TMI 1221 - Commissioner - GSTRefund of unutilized Input Tax Credit - inverted duty structure - rejection of refund of appellant mainly on the ground that of Para 4.2 of Circular No. 59/33/2018-GST, dated 4-9-2018, the claimant is not eligible for the refund on input services and eligible for the refund on Inputs - HELD THAT:- The appellant has pleaded that the tax paid on services is also covered under the definition of input tax credit as defined under Section 2(63) read with Section 2(62) of CGST Act, 2017. In absence of specific exclusion regarding refund of input tax credit on services under Section 54(3) of CGST Act, 2017 may not be denied by the Authorities. Further, the appellant has pleaded that the benefit given under Section cannot be restricted/withdrawn by Rules and section will prevail over rule as Rules are subordinate to the Act. The Central Government, in contemplation of the powers conferred by Section 164 of the Central Goods and Services Tax Act, 2017 (12 of 2017), has amended the Central Goods and Services Tax Rules, 2017 by issuing the Notification No. 26/2018-Central Tax, dated 13-6-2018 - the subject matter has also been under consideration at various judicial and quasi-judicial authorities and the recent progression in the matter is prominent to deliberate cautiously hereunder, which is not only a obiter dicta but also laid the foundation for formulation of the principles of law for the purpose of deciding the present problem before us on this issue. The amendment by the Notification No. 26/2018-Central Tax, dated 13-6-2018 is intra vires to the Section 54(3) of the CGST Act, 2017 provisions. Further, the Rule 89(5) is not contrary to the provisions of Section 54(3) of the CGST Act, 2017 as amended albeit it, as a corollary, Rule 89(5) of the CGST Rules, as amended, is in conformity with Section 54(3)(ii). The scope, function and role of amendment as adumbrated in above paras and on applying the ratio decidendi of the Hon’ble Madras High Court, I find that the lexes of the amendments are amply justified. Thus, refund of input services/capital goods on account of inverted duty structure is not admissible in terms of Section 54(3) read with Rule 89(5) of the CGST Act/Rules, 2017 - appeal dismissed.
|