TMI Blog2022 (4) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... is available under the Act can be taken away and/or restricted by the circular? - HELD THAT:- Any circular issued under Section 168(1) of the Act is only for the purpose of bringing uniformity in the implementation of the Act. The intention of the legislature as expressed in Section 54(3) of the Act is clear and unambiguous. The Section, in absolute uncertain terms, mentions that refund of any unutilized input tax credit may be claimed where credit has accumulated on account of rate of tax on inputs being higher than the rate of tax on output supplies. The Act does not restrict refund only in respect of supplies which are different at the input and output stage. The Board thought it fit to reduce the tax in respect of domestic consumers w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r alia praying for setting aside the impugned order passed by the adjudicating officer that is the Assistant Commissioner, Siliguri dated 26.11.2020 and the impugned order passed by the appellate authority being the Joint Commissioner, State Tax Siliguri dated 10.12.2021 rejecting the refund claim of the petitioners. The claim pertains to the period 01.10.2018 to 31.12.2018. The said refund was sought under Section 54(3) of the Central Goods and Services Tax Act, 2017. The petitioners are engaged in the business of purchasing LPG gas in bulk through tanker and thereafter bottling the same in bottles / cylinders of 4kgs, 6kgs, 14kgs, 17kgs and 21kgs and sell the same to commercial customers on GST applicable at the rate of 18% and to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e circular which has been issued as clarification cannot take away the right granted in their favour by the Act itself. According to the petitioners, the gas which is purchased in bulk is not supplied to the consumers in the same manner and quantity, but bulk gas is refilled in small containers and thereafter sold out to both commercial as well as domestic consumers. Hence, it cannot be said that the input and output supplies remain the same. In support of their stand the petitioners rely upon an advance ruling by the Gujarat Authority for Advance Ruling in Advance Ruling No. GUJ/GAAR/R/2020/15 dated 19.05.2020 in re- M/s. Navbharat LPG Bottling Company wherein the Authority was of the opinion that the applicant would be liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uantities in different containers, remains the same and hence, the petitioners are liable to pay 18% tax in both input and output supplies. They are not entitled to any refund on account of the inverted tax structure. I have heard the submissions made on behalf of both the parties. The petitioners claim refund in accordance with Section 54(3) of the CGST Act, 2017 on the ground that credit has accumulated on account of rate of tax on inputs being higher than the rate of tax on output supplies. Admittedly, the rate of tax on the input supply (LPG in bulk) is 18% and the rate of tax on output supply (LPG in small Containers for domestic consumers) is 5%. The claim of the petitioners for refund stood rejected on the ground that the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Act does not restrict refund only in respect of supplies which are different at the input and output stage. The Board thought it fit to reduce the tax in respect of domestic consumers with effect from 25.01.2018 and there is no reason as to why the benefit of accumulated input tax credit will not be passed on to the petitioners. Section 168(1) strives to lay down that for the purpose of uniformity in the implementation of the Act, orders, instructions or directions may be issued. Uniformity in implementation does not mean curbing benefits available in the Act by introducing new provisions. A circular cannot supplant or implant any provision which is not available in the Act. The circular dated 31.03.2020 is imposing a restrictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the legislature was unmindful of the fact that there may be instances where the input and output supplies are the same. On the contrary, it can be said that the legislature consciously did not create any distinction for allowing refund in all cases where the input tax is more than the output tax. The said benefit is applicable to all similar cases. The respondent authority ought not to reject the claim of the petitioners relying on the circular as the prayer made by the petitioners is permissible under the Act. In view of the discussions made hereinabove, the impugned orders passed by the adjudicating authority and the appellate authority are liable to be set aside and quashed. The same are accordingly set aside and quashed. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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