TMI Blog2020 (10) TMI 1099X X X X Extracts X X X X X X X X Extracts X X X X ..... customs dated 13th October 2017. On conjoint readings of the provision of Section 16 of the IGST Act, Section 54 of CGST Act and Rule 96 (10) of CGST Rules, which is substituted by Notification No. 54/2018 dated 9th October 2018, it is apparent that the person who has availed the benefits of Notification No. 48/2017 dated 18th October 2017 and other Notifications as stated in sub -rule 10 shall not have the benefit of claiming refund of integrated tax paid on exports of goods or services. The petitioner has availed benefits under Advance Authorization License scheme as per the Notification No. 18/2015 which was amended by Notification No. 79/2017 dated 13th October 2017 and paid integrated tax on the goods procured by the petitioners for the export purpose. Considering the effect of the Notification No. 54/2018, the contentions raised on behalf of the respondents that there is no discrimination qua the petitioner is tenable in law, as by the amendment made by Notification No. 54/2018 it clearly denied the benefit which is granted to the petitioner by the Notification No. 39/2018 was withdrawn as the same was not made applicable from 23rd October, 2017. The grievance of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the CGST and the GGST Rules; c) this such further and other reliefs be granted as this Hon'ble Court may deem fit and proper. 4. The short facts of the case are as under: 4.1. The petitioner is a public limited company engaged in the business of manufacturing and sale of flexible packaging films. The petition is filed through its Director and Authorized person Mr. Anil Kumar Jain. 4.2. The petitioner is the holder of Advance Authorization Licenses (for short the AA License ) granted in terms of the Foreign Trade Policy, issued and amended from time to time. 4.3. The petitioner has obtained AA Licenses and imports goods without payment of import duty in terms of Notification No. 79/2017 -Customs, dated 13th October 2017. It is the case of the petitioner that, with effect from 1st July 2017, the Central Goods and Service Tax Act,2017 (for short the CGST Act ) and the Gujarat Goods and Services Tax Act, 2017 (for short the GGST Act ) are enacted for indirect tax on goods and services. The provisions with respect to export of goods or services are contained under the Integrated Goods and Services Tax Act, 2017 (for short the IGST Act ). Section 16 of the IG ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect from 23rd October, 2017 thereby indicating that Notification No. 54/2018- Central Tax do not intend to apply the amendment to Rule 96(10) of the CGST Rules retrospectively. The petitioner has therefore preferred this petition challenging the aforesaid notifications and amendments made in sub -rule 10 of Rule 96 of the CGST Rules, by Notification No. 54/2018 denying the option to claim rebate to the petitioner for importing goods under AA Licenses being ultra vires the provisions of the CGST Act and the CGST Rules made there under and Article 14 of the Constitution of India. 5. It would therefore be necessary to refer to the relevant provisions of the CGST Act, IGST Act and CGST Rules which have been amended by the impugned notifications as under: 5.1. Section 16 of the IGST Act, 2017 read as under: SECTION 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upplies 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 incid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son; 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 to pay but which remains unpaid under this Act or under the existing law. Explanation . For the purposes of this s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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 or in Indian rupees wherever permitted by the Reserve Bank of India, 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portal, [the system designated by the Customs or the proper officer of Customs, as the case may be, shall process the claim of refund in respect of export of goods] and an amount equal to the integrated tax paid in respect of each shipping bill or bill of export shall be electronically credited to the bank account of the applicant mentioned in his registration particulars and as intimated to the Customs authorities. (4) The claim for refund shall be withheld where, (a) a request has been received from the jurisdictional Commissioner of central tax, State tax or Union territory tax to withhold the payment of refund due to the person claiming refund in accordance with the provisions of sub -section (10) or sub -section (11) of section 54; or (b) the proper officer of Customs determines that the goods were exported in violation of the provisions of the Customs Act, 1962. (5) Where refund is withheld in accordance with the provisions of clause (a) of sub -rule (4), the proper officer of integrated tax at the Customs station shall intimate the applicant and the jurisdictional Commissioner of central tax, State tax or Union territory tax, as the case may be, and a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the Gazette of India, Extraordinary, Part II, Section 3, sub -section (i), vide number G.S.R. 1299 (E), dated the 13th October, 2017 except so far it relates to receipt of capital goods by such person against Export Promotion Capital Goods Scheme.] 5.4. Notification No. 40 of 2017 -C.T. (Rate) dated 23 Oct 2017 read as under: Reduced CGST Rates prescribed for supply of taxable goods by a registered supplier to a registered recipient for export subject to specified conditions. In exercise of the powers conferred by sub -section (1) of section 11 of the Central Goods and Services Tax Act, 2017 (12 of 2017) (hereafter in this notification referred to as the said Act ), the Central Government, on being satisfied that it is necessary in the public interest so to do, on the recommendations of the Council, hereby exempts the intra State supply of taxable goods (hereafter in this notification referred to as the said goods ) by a registered supplier to a registered recipient for export, from so much of the central tax leviable thereon under section 9 of the said Act, as is in excess of the amount calculated at the rate of 0.05 per cent., subject to fulfillment of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of the registered supplier along with proof of export general manifest or export report having been filed to the registered supplier as well as jurisdictional tax officer of such supplier. 2. The registered supplier shall not be eligible for the above mentioned exemption if the registered recipient fails to export the said goods within a period of ninety days from the date of issue of tax invoice. 5.5. Notification No. 41/2017 -Integrated Tax (RATE) reads as under: INTEGRATED TAX (RATE) SECTION 6 OF THE INTEGRATED GOODS AND SERVICES TAX ACT, 2017 POWER TO GRANT EXEMPTION EXEMPTION TO INTER STATE SUPPLY OF TAXABLE GOODS BY A REGISTERED SUPPLIER TO A REGISTERED RECEIPT FOR EXPORT, FROM SO MUCH OF INTEGRATED TAX LEVIABLE THEREON UNDER SECTION 5, AS IS IN EXCESS OF AMOUNT CALCULATED AT RATE OF 0.1 PER CENT NOTIFICATION NO.41/2017 -Integrated Tax (RATE), DATED 23 10 2017 In exercise of the powers conferred by sub -section (1) of section 6 of the Integrated Goods and Services Tax Act, 2017 (13 of 2017), (hereafter in this notification referred to as the said Act ), the Central Government, on being satisfied that it is necessary in the public intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of goods in the registered warehouse from the warehouse operator and the endorsed tax invoice and the acknowledgement of the warehouse operator shall be provided to the registered supplier as well as to the jurisdictional tax officer of such supplier; and (ix) when goods have been exported, the registered recipient shall provide copy of shipping bill or bill of export containing details of Goods and Services Tax Identification Number (GSTIN) and tax invoice of the registered supplier along with proof of export general manifest or export report having been filed to the registered supplier as well as jurisdictional tax officer of such supplier. 2. The registered supplier shall not be eligible for the above mentioned exemption if the registered recipient fails to export the said goods within a period of ninety days from the date of issue of tax invoice. 5.6. Notification No. 48/2017- C.T. dated 18 Oct 2017 reads as under: Deemed Exports Supply of goods against advance authorization, EPCG or supply to EOU or by Banks/PSUs against advance authorization notified as deemed exports. In exercise of the powers conferred by section 147 of the Central Goods and S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect of export of goods shall be substituted; (d) for sub -rule (9), the following sub-rules shall be substituted, namely : (9) The application for refund of integrated tax paid on the services exported out of India shall be filed in FORM GST RFD 01 and shall be dealt with in accordance with the provisions of rule 89 . (10) The persons claiming refund of integrated tax paid on exports of goods or services should not have received supplies on which the supplier has availed the benefit of the Government of India, Ministry of Finance, notification No.48/2017 Central Tax, dated the 18 th October, 2017 published in the Gazette of India, Extraordinary, Part II, Section 3, sub -section (i), vide number G.S.R. 1305(E), dated the 18th October, 2017 or notification No.40/2017 -Central Tax (Rate), 23rd October, 2017 published in the Gazette of India, Extraordinary, Part II, Section 3, sub -section (i), vide number G.S.R. 1320(E), dated the 23rd October, 2017 or notification No.41/2017 -Integrated Tax (Rate), dated the 23 rd October, 2017 published in the Gazette of India, Extraordinary, Part II, Section 3, sub -section (i), vide number G.S.R. 1321(E), dated the 23rd Octo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, 2017, namely : 1. (1) These rules may be called the Central Goods and Services Tax (Eleventh Amendment) Rules, 2018. (2) They shall be deemed to have come into force with effect from the 23rd October, 2017. 2. In the Central Goods and Services Tax Rules, 2017, in rule 96, for sub -rule (10), the following sub -rule shall be substituted and shall be deemed to have been substituted with effect from the 23 rd October, 2017, namely : (10) The persons claiming refund of integrated tax paid on exports of goods or services should not have received supplies on which the supplier has availed the benefit of the Government of India, Ministry of Finance, notification No. 48/2017Central Tax, dated the 18th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, sub -section (i), vide number G.S.R. 1305(E), dated the 18th October, 2017 or notification No.40/2017 -Central Tax (Rate), dated the 23rd October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, sub -section (i), vide number G.S.R. 1320(E), dated the 23rd October, 2017 or notification No.41/2017 -Integrated Tax (Rate), dated the 23rd October, 2017, publi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a, Extraordinary, Part II, Section 3, sub -section (i), vide number G.S.R 1299(E),dated the 13 th October, 2017, the refund of input tax credit, availed in respect of inputs received under the said notifications for export of goods and the input tax credit availed in respect of other inputs or input services to the extent used in making such export of goods, shall be granted. . 3. In the said rules, in rule 96, for sub -rule (10), the following sub -rule shall be substituted, namely: (10) The persons claiming refund of integrated tax paid on exports of goods or services should not have (a) received supplies on which the benefit of the Government of India, Ministry of Finance notification No. 48/2017 Central Tax, dated the 18 th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, sub -section (i), vide number G.S.R 1305 (E), dated the 18th October, 2017 except so far it relates to receipt of capital goods by such person against Export Promotion Capital Goods Scheme or notification No. 40/2017 -Central Tax (Rate), dated the 23rd October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, sub -section (i), vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed advocate Mr. Rastogi therefore submitted that the action of the respondents suffers from the vices of excessive delegation by the impugned notifications denying the benefit of Zero rated exports conferred upon the petitioner through Section 16(3)(b) of the CGST Act by imposing arbitrary restrictions upon the petitioner, so that they are unable to claim rebate benefits from the Government. 6.5. It was submitted that the petitioner is entitled to rebate of IGST on exports under Section 16 of the IGST Act r/w. Section 54 of the CGST Act, as the benefits against the export of goods can be claimed after payment of IGST on exports and claim refund of such IGST paid under the rebate mode, as provided under Section 54 of the CGST Act and the CGST Rules. It was submitted that neither Section 16 of the IGST Act nor Section 54 of the CGST Act prescribes any power to issue impugned notifications, so as to deny the impact of zero rating exports for granting benefits of rebate under Section 16 of the IGST Act, so as to nullify the benefits under the Advance Authorization Scheme availed by the exporters, like the petitioner. 6.6. It was submitted that in view of the impugned notificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he definition of Net ITC. Rule 89(4A) of the CGST Rules, which reads as under: Definition of Net ITC and Rule 89(4A) Net ITC means input tax credit availed on inputs and input services during the relevant period other than the input tax credit availed for which refund is claimed under sub rules (4A) or (4B) or both; (4A) In the case of supplies received on which the supplier has availed the benefit of the Government of India, Ministry of Finance, notification No.48/2017 Central Tax dated the 18th October, 2017 published in the Gazette of India, Extraordinary, Part II, Section 3, sub section(i), vide number G.S.R 1305 (E) dated the 18th October, 2017, refund of input tax credit, availed in respect of other inputs or input services used in making zero rated supply of goods or services or both, shall be granted. 6.10. Relying upon the above provisions that AA License holders cannot claim input tax credit in case the vendor / supplier is availing Deemed Export Benefits and the AA License holder is also required to furnish an undertaking stating that no input tax credit is claimed. The reliance was also placed on Circular No. 14/142017 GST, dated 6th Nove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les is only to the extent required by the CGST Act and accordingly, such powers can be exercised only subject to and subservient to the respective provisions of the GST law. It was therefore submitted that rebate mode or refund mode prescribed under the Rules should be in accordance with Section 16 of the IGST Act or Section 54 of the CGST Act. 6.15. Mr. Rastogi therefore submitted that amended sub -rule 10 of Rule 96 restricts rebate claims in case of AA License holders without any reasonable basis to justify imposition of absolute restriction for not claiming and not the form and manner for claiming refund. 6.16. Mr. Rastogi without admitting that the respondents have the power to prescribe safeguards and conditions for refund of tax, submitted that sufficient safeguards already exist to prevent undue benefits being claimed, as Rule 89 of the CGST Rules prohibits availment of input tax credit in case of Deemed Export Benefits are claimed and in case of Merchant Export Benefits and AA benefits, the quantum of rebate can in no case exceed the input tax credit balance i.e. the input tax credit earlier availed. It was therefore submitted that, the amendment of sub -rule (10) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount to its foreign customers, which would lead to a situation of export of taxes, which is against the policy of the respondent no.1. 6.21. Lastly, reliance was placed on the statement of objects and reasons to the Constitution Amendment Bill introducing the GST regime in India, wherein, it is specified that removal of the cascading effect of taxes is one of the objectives of GST and hence, smooth pass through of credits is the stated objective of the GST regime and denial of benefit on transitional credit to the petitioner leading to blockage of credits is against the spirit and objective of the GST regime. SUBMISSIONS ON BEHALF OF THE RESPONDENTS: 7.1. Learned Standing Counsel Mr. Nirzar Desai appearing for the respondent nos. 1, 3 and 4 submitted that, sub -rule (10) of Rule 96 of CGST Rules only provides that registered persons, including importers, who are directly purchasing / importing supplies on which the benefit of reduced tax incidence or no tax incidence under certain specified notifications has been availed, would not be eligible for refund of integrated tax paid on export of goods or services. It was submitted that, the intention of sub -rule (10) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CGST/GGST Rules, 2017 inserted vide Para 6 of Notification No.39/2018 Central Tax/State Tax, dated 04.09.2018 violates the Article 14 of Constitution of India. In this regard, I say that it is well-established that Article 14 forbids class legislation but does not forbid classification. Permissible classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and the differentia must have a rational relation to the object sought to be achieved by the statute in question. I further say that what is disallowed to the petitioner and allowed to others of the same class should be demonstrated by the petitioner. That is the test for arbitrariness. The petitioners had no occasion to demonstrate their case in the test of arbitrariness. Needless to mention, GST laws are a self contained legislations. The laws were promulgated after necessary constitutional amendments. It cannot, therefore, be said that equals have been treated unequally or unequals have been treated equally while providing benefit of Notification No. 39/2018 Central Tax/State Tax, dated 04.09.2018. Only such provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is still entitled to the full enjoyment of this freedom even after implementation of the notification, ibid, and the legislature has not infringed his right to trade under Article 19(1)(g) of the Constitution. 13. In view of whatever is stated hereinabove it is stated that the Petitioners have no case on merits or otherwise and hence, the present Petition deserves to be dismissed. 7.3. Relying on the aforesaid averments made in the affidavit in reply, it was submitted that, no interference is required to be made in the retrospective amendment of sub -rule (10) of Rule 96 of the CGST Rules. Mr. Desai further relied upon the decision of the Hon ble Apex Court in the case of State of Gujarat v. Reliance Industries Limited reported in (2017) 16 SCC 28 , wherein, the Apex Court has held in context of the Gujarat Value Added Tax Act, 2003, as under: 18. The aforesaid discussion leads us to the conclusion that it is a mega tax credit scheme which is provided under the VAT Act meant for all kinds of manufactured goods. The material in question, namely, furnace oil, natural gas and light diesel oil are admittedly subject to VAT under the VAT Act. The Legislature, however ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n law (apart from Rules 41 and 41 A) the appellant has no legal right to claim set off of the purchase tax paid by him on his purchases within the State from out of the sales tax payable by him on the sale of the goods manufactured by him. It is only by virtue of the said Rules which, as stated above, are conceived mainly in the interest of public that he is entitled to such set off. It is really a concession and an indulgence. More particularly, where the manufactured goods are not sold within the State of Maharashtra but are despatched to out State branches and agents and sold there, no sales tax can be or is levied by the State of Maharashtra. The State of Maharashtra gets nothing in respect of such sales effected outside the State. In respect of such sales, the rule making authority could well have denied the benefit of set off. But it chose to be generous and has extended the said benefit to such out State sales as well, subject, however to deduction of one per cent of the sale price of such goods sent out of the State and sold there. We fail to understand how a valid grievance can be made in respect of such deduction when the very extension of the benefit of set off is itself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viso, such credit to that extent would not be transferred when necessary declarations are not furnished by the dealer. The proviso thereafter however ensures that as and when declarations are filed, the amount equivalent to credit specified in the second schedule would be refunded to the dealer. We do not find any major change in the effect of late production of the forms by a dealer in the present statutory provisions; as compared to the earlier position, nor the statutory provisions deny the benefit of such credit, even where necessary declarations are furnished. Thus, no existing or vested right can be said to have been taken away. We do not think Section 140 [c] is a charging provision or that for want of mechanism for computing such charge, the provision itself would fail. The provision is in the nature of enabling the dealers to take credit of existing taxes paid by them but not utilized for discharging their tax liabilities. It contains conditions subject to which the benefit can be enjoyed. 18 This brings us to the petitioners challenge to rule 117 of the CGST Rules and GGST Rules. The statutory provisions being pari materia in both the Act and the Rules, in so fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ] in Rule 117, authorizing the Commissioner to extend the date for submitting the declaration electronically by a further period not beyond 31st March 2019, in respect of registered persons who could not submit the said declaration by the due date on account of technical difficulties on the common portal and in respect of whom, the Council has made recommendation for such extension. Effectively thus, the last date for filing the declaration under sub rule [1] of Rule 117 in general class of persons remained 27th December 2017. For cases falling under sub rule [1A] of Rule 117, the same could be extended maximum upto 31st March 2019. As per the petitioners, this prescription of time limit per se is ultra vires the provisions of the Act and the Constitution of India. 21 In essence, sub rule [1] of Rule 117 lays down a time limit for making declaration only upon making of which, a person could take benefit of tax credit in terms of Section 140 of the CGST Act. We are conscious that sub sections [1] and [3] of Section 140 of the CGST Act use somewhat different phraseology. Under sub section [1] the legislature has provided that the benefit of credit in the electronic credit ledger ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wering the Government to make the rules for carrying out the provisions of the Act. Sub section [2] to Section 164 is equally widely worded, when it provides that, without prejudice to the generality of the provisions of sub section (1), the Government may make rules for all or any of the matters which by this Act are required to be, or may be, prescribed or in respect of which provisions are to be, or may be made by the rules. Sub section [3] of Section 164, to which we are not directly concerned, nevertheless provides that the power to make rules conferred in the said section would include the power to give retrospective effect to such rules. 24 It is in exercise of this rule making power, the Government has framed the CGST Rules, 2017 in which; as noted, sub rule (1) of Rule 117 has prescribed, besides other things, the time limit for making declaration in the prescribed form for every dealer entitled to take credit of input tax under Section 140. Sub rule [1] of Rule 117 thus applies to all cases of credits which may be claimed by a registered person under section 140 of the Act and is not confined to sub section [3]. This plenary prescription of time limit within which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either unreasonable or arbitrary. When the entire tax structure of the country is being shifted from earlier framework to a new one, there has to be a degree of finality on claims, credits, transfers of such credits and all issues related thereto. The petitioners cannot argue that without any reference to the time limit, such credits should be allowed to be transferred during the process of migration. Any such view would hamper the effective implementation of the new tax structure and would also lead to endless disputes and litigations. As noted in case of USA Agencies [Supra], the Supreme Court had upheld the vires of a statutory provision contained in the Tamil Nadu Value Added Tax Act which provided that the dealer would have to make a claim for input tax credit before the end of the financial year or before ninety days of purchase; whichever is later. The vires was upheld observing that the legislature consciously wanted to set up the time frame for availment of the input tax credit. Such conditions therefore must be strictly complied with. Thus, merely because the rule in question prescribes a time frame for making a declaration, such provision cannot necessarily be held to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Tariff Act, subject to the conditions stated in the said notification. 8.3. After coming into force of GST regime w.e.f. 01.04.2017, Notification No. 79/2017 Customs, dated 13th October 2017 was issued amending the Notification No. 18/2015 by inserting condition (viii) as under: Sr. No. Notification Number and date Amendments 2. 18/2015 Customs, dated the 1 st April, 2015 [vide number G.S.R. 254(E), dated the 1st April, 2015] In the said notification, in the opening paragraph.(a) for the words, brackets, figures and letters from the whole of the additional duty leviable thereon under sub -sections (1), (3) and (5) of section 3, safeguard duty leviable thereon under section 8B and anti dumping duty leviable thereon under section 9A , the words, brackets, figures and letters from the whole of the additional duty leviable thereon under sub -sections (1), (3) and (5) of section 3, integrated tax leviable thereon under sub -section (7) of section 3, goods and services tax compensation cess leviable thereon under sub -section (9) of section 3, safeguard duty l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereafter, sub -rule (10) of Rule 96 of the CGST Rules was amended by the Notification No. 39/2018 dated 4th September 2018 w.e.f. 23rd October 2017 and substitute Rule 10 as under: 6. In the said rules, with effect from the 23rd October, 2017, in rule 96, for sub -rule (10), the following sub -rule shall be substituted, namely : (10) The persons claiming refund of integrated tax paid on exports of goods or services should not have (a) received supplies on which the benefit of the Government of India, Ministry of Finance notification No. 48/2017 -Central Tax, dated the 18th October, 2017 published in the Gazette of India, Extraordinary, Part II, Section 3, sub -section (i), vide number G.S.R. 1305(E), dated the 18th October, 2017 or notification No.40/2017Central Tax (Rate), dated the 23rd October, 2017 published in the Gazette of India, Extraordinary, Part II, Section 3, sub section(i), vide number G.S.R. 1320(E), dated the 23rd October, 2017 or notification No.41/2017 Integrated Tax (Rate), dated the 23rd October, 2017 published in the Gazette of India, Extraordinary, Part II, Section 3, sub section(i), vide number G.S.R. 1321(E), dated the 23rd October, 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -section (i), vide number G.S.R. 1320(E), dated the 23rd October, 2017, or notification No.41/2017Integrated Tax (Rate), dated the 23rd October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, sub -section (i), vide number G.S.R. 1321(E), dated the 23rd October, 2017 or notification No.78/2017 -Customs, dated the 13th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, sub -section (i), vide number G.S.R. 1272(E), dated the 13th October, 2017 or notification No.79/2017 Customs, dated the 13th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, sub -section (i), vide number G.S.R. 1299(E), dated the 13th October, 2017. [Notification No.53/2018 C.T., dated 910 2018] 8.9. Thereafter, by Notification No. 54/2018 dated 9th October 2018 again sub -rule (10) of Rule 96 was amended by substituting the same, wherein, it is provided that the persons claiming refund of integrated tax paid on exports of goods or services should not have received supplies (a) on which the benefits of Notification No. 48/2017 dated 18th October 2017, Notification No. 40/2017 dated 23rd October 2017 or Notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 23rd October 2017, however, by Notification No. 54/2018, the application of the substituted subrule (10) of Rule 96 is not made effective from 23rd October, 2017, but it was made applicable from the inception. Therefore, the petitioner who has availed the benefit of the Notification No. 39/2018 from 23rd October, 2017 to 4th September, 2018 would not be able to get the refund of the IGST paid or the input tax credit balance in the accounts of the petitioner, in view of the Notification No. 54/2018. 8.14. Considering the effect of the Notification No. 54/2018, the contentions raised on behalf of the respondents that there is no discrimination qua the petitioner is tenable in law, as by the amendment made by Notification No. 54/2018 it clearly denied the benefit which is granted to the petitioner by the Notification No. 39/2018 was withdrawn as the same was not made applicable from 23rd October, 2017. 8.15. Recently, vide Notification No. 16/2020-CT dated 23.03.2020 an amendment has been made by inserting following explanation to Rule 96(10) of CGST Rules, 2017 as amended (with retrospective effect from 23.10.2017) Explanation . For the purpose of this subrule, the b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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