TMI Blog2021 (2) TMI 921X X X X Extracts X X X X X X X X Extracts X X X X ..... order shall also be furnished to Ms. Sancheti, the learned counsel appearing for the writ applicant. - R/SPECIAL CIVIL APPLICATION NO. 20500 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 20502 of 2019, With CIVIL APPLICATION (FIXING DATE OF EARLY HEARING) NO. 1 of 2020 In R/SPECIAL CIVIL APPLICATION NO. 20502 of 2019,20996 of 2019 - - - Dated:- 17-2-2021 - HONOURABLE MR. JUSTICE J.B. PARDIWALA AND HONOURABLE MR. JUSTICE ILESH J. VORA Appearance: MS HETVI H SANCHETI(5618) for the Petitioner(s) No. 1 ADVOCATE NOTICE SERVED(81) for the Respondent(s) No. 1,2 MR DEVANG VYAS(2794) for the Respondent(s) No. 3 COMMON ORAL ORDER (PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA) 1. Since the issues raised in all the captioned writ-applications are the same, those were taken up for hearing analogously and are being disposed of by this common order. 2. For the sake of convenience, the Special Civil Application No.20500 of 2019 is treated as the lead matter. 3. The facts giving rise to this writ-application may be summarised as under: 3.1 It is the case of the writ applicant that it is engaged in the manufacture of lead sulphate. The writ applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vt. Ltd. vs. Union of India [Special Civil Application No.1014 of 2020 decided on 15th December 2020]. The order reads thus: 1. By this writ application under Article226 of the Constitution of India, the writ applicant has prayed for the following reliefs: (A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other writ, orders or directions to the respondent authorities to immediately sanction the refund of IGST paid in regard to the goods exported I.e. Zero Rated Supplies made vide shipping bills mentioned hereinabove; (B) YOUR LORDSHIPS may be pleased to direct the respondent authorities to pay interest @ 9% to the petitioner herein on the amount of refund from the date of shipping bill 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; (C) Your Lordships may be pleased to grant an ex-parte, ad interim order in favour of the petitioner herein in terms of prayer clause A and B hereinabove; (D) Such further relief(s) as deemed fit in the facts and circumstances of the case may kindly be grante ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only when the person in charge of conveyance carrying the export goods duly files an export manifest or an export report covering the number and the date of shipping bills or bills of export and the applicant has furnished a valid return in the Form GSTR-3 or Form GSTR3B. It is submitted that however while filing the shipping bill the Custom House Agent (hereinafter referred to as the CHA ) inadvertently failed to disclose the details of IGST paid I.e. ₹ 4,53,534/and was filed disclosing only the drawback amount. It is further submitted that however the aforesaid mistake was rectified and had been properly disclosed in its return filed under the CGST Act for the month of July, 2017 in the Form GSTR- 01 and GSTR -3B. 5. It is submitted that owing to the fact that various IGST refunds were stuck due to mismatch of invoice and shipping bill, the Central Board of Excise Customs (hereinafter referred to as the CBIC ) vide Circular No.05/2018-Customs, dated 23.02.2018 provided an alternative mechanism to give the exporters an opportunity to rectify such errors committed in the initial stages which required the petitioner to submit a concordance table mapping between the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xports, and supplies made to the Special Economic Zone Unit or Special Economic Zone Developer and the manner of zero rating. 24. It is not in dispute that the goods in question are one of zero rated supplies. A registered person making zero rated supplies is eligible to claim refund under the options as provided in sub-clauses (a) and (b) to clause (3) of Section 16 referred to above. 25. Section 54 of the CGST Act, 2017, provides that any person claiming refund of any tax and interest, if any, paid on such tax or any other amount paid by him, shall make an application before the expiry of two years from the relevant date in such form and manner as may be prescribed. 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 will have to be credited to the Fund referred to in Section 57 of the CGST Act, 2017. 26. Rule 96 of the CGST Rules provides for a deeming fiction. The shipping bill that the exporter of goods may file is deemed to be an application for refund of the integrated tax paid on the goods exported out of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncerned. 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. 7. Mr. Parth Bhatt has one more argument to canvass. According to him, in Amit Cotton Industries [Supra], the assessee had returned the amount towards the difference of higher and lower duty drawback, whereas, in the instant case, the writ applicant has not returned the amount of the difference of higher and lower duty drawback. 8. We are not impressed by such submission because the rates of higher and lower duty drawback remains the same i.e. two percent and no occasion would arise to refund the differential amount as argued by the learned counsel appearing for the revenue. The Circular No.37/2018 Customs, dated 09/10/2018 referred to above by the Competent Authority would apply only to the cases, where the exporters have a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rate of 9% and the amount shall be paid accordingly. 8. According to Ms. Sancheti, not only the question of law involved, but even the facts of her writ-applications are identical to the facts in the case of Awadkrupa Plastomech (supra). 9. Mr. Ankit Shah, the learned Senior Standing Counsel appearing for the respondents would submit that the respondent No.1 shall look into the matter and take an appropriate decision keeping in mind the ratio of the decisions of this Court rendered in the case of M/s. Amit Cotton Industries (supra). 10. We dispose of all the writ-applications with a direction to the respondent No.1 to immediately look into the matters and pass an appropriate order in accordance with law as regards the claim of the IGST refund keeping in mind the ratio of the decisions of this Court rendered in the case of M/s. Amit Cotton Industries (supra) as well as Awadkrupa Plastomech (supra). Let this exercise be completed within a period of six weeks from the date of receipt of the writ of this order. One copy of this order shall be furnished to Mr. Ankit Shah, the learned Senior Standing Counsel appearing for the respondents for its onward communi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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