TMI Blog2022 (4) TMI 819X X X X Extracts X X X X X X X X Extracts X X X X ..... ut of India, the same are to be treated and termed as Zero Rated Supplies as provided under Section 16 of the IGST Act. Rule 96 of the CGST Rule, 2017 - HELD THAT:- It provides that the shipping bills filed by an exporter of goods shall be deemed to be an application for refund of integrated tax paid on the goods export outside India and such application shall be deemed to have been filed only when the person in charge of conveyance carrying exported goods duly filed and exported manifestly or an export report covering the date and proof and shipping bill and date of export and the application must have furnished the valid return the in the Form GSTR 1 and GSTR-3B - the writ applicant is otherwise entitled to the refund of IGST as envisaged under the relevant provisions of IGST Act, 2017. The respondent Authority are directed to immediately sanction the refund of IGST aggregating to an amount of ₹ 37,10,326/- in regard to the shipping bills exported as Zero Rated Supplies within a period of two weeks from the date of receipt of this order - petition allowed. - R/SPECIAL CIVIL APPLICATION NO. 6576 OF 2021 - - - Dated:- 9-2-2022 - HONOURABLE MR. JUSTICE J.B.PARD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same are ultravires to the provisions of Section 16(3)(b) of the Integrated Goods and Service Tax Act, 2017 read with Section 54 of Central Goods and Service Tax Act, 2017 read with Rule 96 of Central Goods and Service Tax Rules, 2017. 2. Brief facts which emerge from the record are as under: 2.1 The writ applicant is a proprietorship concern and is holding a valid registration under the CGST Act. The certificate of registration is placed on record at page 38, whereby it appears that the certificate of registration is issued on 19.09.2017 and the period of validity / liability starts from 01.07.2017. 2.2 The petitioner is engaged in exporting various agricultural food products and spices to the various countries outside India. 2.3 During the months of July and August, 2017, the writ applicant firm had exported the goods under the various invoices on payment of IGST of the amount of ₹ 37,01,326/-. The writ applicant has produced various documents which includes GST invoices, export invoices, shipping bills, export general manifest and bill of lading. 2.4 Thus, the writ applicant being an exporter is entitled to Zero Rated Supply benefit as envisaged under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17- 18 03/07/2017 716498 8 05/07/1 7 130023 13/07/1 7 MOLU13903539572 09/07/2017 06. SWI/EXP/62/17-18 04/07/2017 SWI/EXP/62/17-18 04/07/2017 714933 1 04/07/1 7 130786 19/07/1 7 769850302 15/07/2017 07. SWI/EXP/74/17-18 05/07/2017 SWI/EXP/74/17-18 05/07/2017 717421 4 05/07/1 7 130018 19/07/1 7 SMLMPAV700071700 09/07/2017 08. SWI/EXP/79/17-18 05/07/2017 SWI/EXP/79/17-18 05/07/2017 726555 3 11/07/1 7 130864 18/08/1 7 OOLU2590879510 13/07/2017 09. SWI/EXP/82/17-18 07/07/2017 SWI/EXP/82/17-18 07/07/2017 721707 4 07/07/1 7 130864 18/08/1 7 GOSUPAV6044707 20/07/2017 10. SWI/EXP/83/17-18 12/07/2017 SWI/EXP/83/17-18 12/07/2017 738340 3 15/07/1 7 131134 18/08/1 7 OOL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or issuance of amended certificate with respect to wrong amount of taxable value and IGST tax value entry in these specified shipping bills. 2.8 The Assistant Commissioner, Customs House, Pipavav, had examined the aforesaid documents and had permitted the amendment by issuing certificate of amendment whereby the particulars of tax value of IGST amount were ordered to be corrected in respect of 16 shipping bills furnished by the writ applicant firm during the month of July, 2017 and August, 2017. The writ applicant firm simultaneously seems to have made representation to the Deputy / Assistant Commissioner, Customs House, Pipavav, to sanction of aforesaid shipping bills and claimed refund of IGST of an amount of ₹ 31,08,988/- and ₹ 5,92,338/- (total ₹ 37,01,326/-) for the month of July, 2017 and August, 2017. The writ applicant had also submitted supporting documents which includes copies of 16 shipping bills and amendment certificate dated 01.09.2017 as well as copy of undertaking, copies of challan issued by the Customs Authority and calculation sheet for differential drawback return. 2.9 Attention of the Deputy / Assistant Commissioner, Customs House, Pipa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and is corrected in the account of respondent Custom Department. Thus, in absence of any valid reason, considering tremendous financial difficulty being faced by the writ applicant, the earnest request was made to the respondent Authorities to credit the amount of refund of IGST to the tune of ₹ 37,01,326/-. 2.13 Without properly appreciating the aforesaid particulars in light of relevant provisions of law, the respondent Authorities reiterated its earlier stance once again vide letter dated _____relying upon the Circular bearing No.37/2018 Custom dated 09.10.2018 (wrongly referred as dated 09.10.2019) as well as the reference was made to the EDI systems not permitting the respondent Authorities to process the amending shipping bills manually once the LEO is granted and thereby refused to consider the claim of the writ applicant for IGST refund. In such circumstances, the writ applicant has approached this Court with the relief so sought for. 3. We have heard Mr. D.K. Trivedi, the learned counsel appearing for the writ applicant Firm as well as Mr. Nikunt Raval, the learned senior standing counsel for the respondent Authorities. Only limited controversy involved in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fallacious, more particularly, in view of the settled legal position as held by this Court in the case of Amit Cotton (Supra). Further, the attention of this Court was drawn to the fact that the reliance upon Circular bearing No.37/2018 Custom dated 09.10.2018 and had also been demonstrated by this Court in the case of Amit Cotton by relying upon the decision of the Supreme Court in the case of Commissioner of Central Excise, Bolpur v. Ratan Melting and Wire Industries, reported in 2008(12) S.T.R. 416 (S.C.), thereby holding that the circulars and instructions issued by CBIC are merely instructions for understanding of statutory provisions and are not binding on the Court. The Circulars which are contrary to the statutory provisions has no existence in the eye of law. The contention of this Court was also drawn to the decision in the case of J.K.Lakshmi Cement Limited v. Commercial Tax Officer, Pali, reported in 2018(14) G.S.T.L. 497 (S.C.), to contend that power to issue circulars is for just, proper and efficient management of the work and in public interest. Such power for proper administration of fiscal law is utilized for avoiding undue hardships to the assessee. Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the Central Goods and Services Tax Act, credit of input tax may be availed for making zero-rated supplies, notwithstanding that such supply may be an exempt supply. (3) A registered person making zero rated supply shall be eligible to claim refund under either of the following options, namely: (a) he may supply goods or services or both under bond or Letter of Undertaking, subject to such conditions, safeguards and procedure as may be prescribed, without payment of integrated tax and claim refund of unutilised input tax credit; or (b) he may supply goods or services or both, subject to such conditions, safeguards and procedure as may be prescribed, on payment of integrated tax and claim refund of such tax paid on goods or services or both supplied, in accordance with the provisions of section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 incidence of such tax and interest had not been passed on to any other person: Provided that where the amount claimed as refund is less than two lakh rupees, it shall not be necessary for the applicant to furnish any documentary and other evidences but he may file a declaration, based on the documentary or other evidences available with him, certifying that the incidence of such tax and interest had not been passed on to any other person. (5) If, on receipt of any suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 sub-section, the expression specified date shall mean the last date for filing an appeal under this Act. (11) Where an order giving rise to a refund is the subject matter of an appeal or further proceedings or where any other proceedings under this Act is pending and the Commissioner is of the opinion that grant of such refund is likely to adversely affect the revenue in the said appeal or other proceedings on account of malfeasance or fraud committed, he may, after gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay be, the inputs or input services used in such services, the date of (i) receipt of payment in convertible foreign exchange, 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 under sub-section (3), the end of the financial year in which such claim for refund arises; (f) in the case where tax is paid provisionally under this Act or the rules made thereunder, the date of adjustment of tax after the final assessment thereof; (g) in the case of a person, other than the supplier, the date of receipt of goods or services or both by such person; and (h) in any other case, the date of payment of tax. 7. So far as Rule 96 of the CGST Rule, 2017 are concerned, it provides that the shipping bills fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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