TMI Blog2020 (12) TMI 1116X X X X Extracts X X X X X X X X Extracts X X X X ..... facts of the present case - Even as per the Condition No.7 of the Notification 131/2016 Cus. (N.T.) dated 31/10/2016, if the rate indicated in the columns (4) i.e. higher duty drawback and (6) i.e. lower duty drawback are the same, then it shall necessarily imply that the same pertains only to the Customs component and is available irrespective of whether the exporter has availed of the CENVET facility or not. The petitioner had exported Rope Making Machine HSN Code 84794000 which attracts the same rate under both the columns (4) (6) respectively i.e. 2 per cent. Thus it is evident that the petitioner has claimed drawback of the customs component only for their exports and there arises no question of denying the refund of IGST. In the case of the writ-applicant, the drawback rates being the same, it represents only the Customs elements, which did not get subsumed in the GST and thus, the writ-applicant cannot be said to have availed double benefit i.e. of the IGST refund and higher duty drawback. The respondents are directed to immediately sanction the refund towards the IGST paid in respect to the goods exported i.e.'Zero Rated Supplies' made vide the shipping b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und that the writ-applicant had claimed higher duty drawback. According to the writ-applicant, there is no legal embargo to avail the drawback at higher rate on one hand and availing refund of the IGST paid with regard to the 'Zero Rated Supply' i.e. the goods exported out of India on the other. 3. It is pointed out by the learned counsel appearing for the writ-applicant that some time in July 2017, the writ-applicant had exported goods and effected 'Zero Rated Supply' under Section16 of the IGST of the finished goods of a total invoice value of ₹ 29,73,166/. The total taxable value of the said export is ₹ 25,19,632/. It is pointed out that the goods supplied by the registered person were neither Nil Rated goods nor exempt supplies. The said supplies are affected by payment of the IGST in accordance with the provision contained in Section16( 3)(b) of the Act. According to the said provision, a registered person making 'Zero Rated Supply' has an option to claim refund in accordance with Section16( 3)(b) of the Act in a manner as to he may supply goods or services or both, on payment of the Integrated Tax and claim refund of such tax paid on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e drawback includes the Customs, Central Excise and Service Tax component and it's called the Higher drawback. Similarly, if any exporter claims drawback under Column (6) and (7), it means the drawback included Customs only and it's called the Lower drawback. After the introduction of the IGST, the condition 11 of the Notification 131/2016 Cust (N.T.) dated 31/10/2016 has been amended by the Notification 59/2017, dated 29/06/2017. The Condition No.11(d) mentions that the drawback under Column (4) and (5) i.e. Higher Drawback is not applicable to the goods if goods is exported by claiming refund of the integrated goods and services tax paid on such exports. Adverting to the Circular No.37/2018Customs contentions were raised that the exporters had availed the option to take drawback at higher rate in place of the IGST refund out of their own volition. Considering the fact that the exporters have made aforesaid declaration while claiming the higher rate of drawback, it has been decided that it would not be justified allowing the exporters to avail the IGST refund after initially claiming the benefit of higher drawback. 6. We are of the view that the controversy raised in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If the claim of the writ-applicant is to be rejected only on the basis of the circular issued by the Government of India dated 9th October, 2018 referred to above, then we are afraid the submission canvassed on behalf of the respondents should fail as the same is not sustainable in law. 29. We are not impressed by the stance of the respondents that although the writ-applicant might have returned the differential drawback amount, yet as there is no option available in the system to consider the claim, the writ-applicant is not entitled to the refund of the IGST. First, the circular upon which reliance has been placed, in our opinion, cannot be said to have any legal force. The circular cannot run contrary to the statutory rules, more particularly, Rule 96 referred to above. 30. Rule 96 is relevant for two purposes. The shipping bill that the exporter may file is deemed to be an application for refund of the integrated tax paid on the goods exported out of India and the claim for refund can be withheld only in the following contingencies :- (a) a request has been received from the jurisdictional Commissioner of central tax, State tax or Union territory tax to withhol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both the columns (4) (6) respectively i.e. 2 per cent. Thus it is evident that the petitioner has claimed drawback of the customs component only for their exports and there arises no question of denying the refund of IGST. The rationale for not allowing the refund of IGST for those exporters, who claim higher duty drawback is that the higher duty drawback reflects the elements of Customs, Central Excise and Service Tax taken together and since higher duty drawback is already being availed than granting the IGST refund would amount to double benefit as the Central Excise and Service Tax has been subsumed in the GST. In the case of the writ-applicant, the drawback rates being the same, it represents only the Customs elements, which did not get subsumed in the GST and thus, the writ-applicant cannot be said to have availed double benefit i.e. of the IGST refund and higher duty drawback. 11. In the result, this petition succeeds and is hereby allowed. The respondents are directed to immediately sanction the refund towards the IGST paid in respect to the goods exported i.e.'Zero Rated Supplies' made vide the shipping bills. It appears that the writ-applicant has also praye ..... 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