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2022 (5) TMI 1021 - HC - GSTRefund of unutilized balance of input tax credit - nil rate of tax/exempt supply - rejection on ground that levy of Nil Rate of Tax on exported goods, i.e., “Iron Ore Fines” falling within the fold of Code No.26011142 specified under Second Schedule of the Export Tariff appended to the Customs Tariff Act, 1975 does not qualify for refund of GST paid in view of Clause (i) of Proviso to sub-section (3) of Section 54 of the OGST/CGST Act - Section 54 of the Odisha Goods and Services Tax Act, 2017 - period 1st June, 2019 to 31st October, 2019 - HELD THAT:- The export of “Iron Ore Fines” even though attracts Nil Rate of Tax, in view of Second Schedule to the Customs Tariff Act, 1975, the Petitioner would be entitled to refund on such export transactions. In view of Section 16 of the IGST Act read with Section 54(3) of the OGST/CGST Act, export of goods or services or both is levied with zero-rate. “NIL rate of Tax” falls within the ken of the term “exempt supply” defined under Section 2(47) of the OGST/CGST Act. Reliance can be placed in the case of M/S. B.S. MINERALS VERSUS STATE OF ODISHA AND OTHERS [2021 (11) TMI 1013 - ORISSA HIGH COURT] where it was held that it is clarified that only those goods which are actually subjected to export duty i.e., on which some export duty has to be paid at the time of export, will be covered under the restriction imposed under section 54 (3) from availment of refund of accumulated ITC. Goods, which are not subject to any export duty and in respect of which either NIL rate is specified in Second Schedule to the Customs Tariff Act, 1975 or which are fully exempted from payment of export duty by virtue of any customs notification or which are not covered under Second Schedule to the Customs Tariff Act, 1975, would not be covered by the restriction imposed under the first proviso to section 54 (3) of the CGST Act for the purpose of availment of refund of accumulated ITC. This Court deems it proper to set aside the order dated 13th July, 2021 of the Appellate Authority passed by the Additional Commissioner of State Tax (Appeal), Bhubaneswar and remand the matter to the said Appellate Authority for deciding the appeal afresh - petition allowed by way of remand.
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