TMI Blog2022 (6) TMI 553X X X X Extracts X X X X X X X X Extracts X X X X ..... n to the components of GST, which is a constitutionally approved amalgam of State taxes, which existed prior to the commencement of the GST regime. The goods and services Tax Compensation Cess Rules, 2017 were also framed and made effective from 1st July, 2017 wherein the Central Goods and Services Tax Rules, 2017 were adapted. There are no reason to interfere with the impugned order dated 5th February, 2021, for the reason that Appellate authority while passing the impugned order has neither committed any procedural irregularity nor any jurisdictional error nor any violation of principles of natural justice and the impugned order is based on cogent reasons and is speaking one and so far as findings of fact is concerned, in exercise of constitutional writ jurisdiction under Article 226 of the Constitution, this Writ Court is not inclined to act as an Appellate authority and differ with the same and substitute the said findings of the Appellate authority. Action of withholding of the petitioner/assessee s claim of refund in question by the respondent CGST authority and not refunding the same to the petitioner in spite of the order of the Appellate authority dated 5th February, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority dated 17th February, 2021 which is further appealable before the Appellate Tribunal by making prayer for quashing of the aforesaid impugned order mainly on the ground that the same is perverse since the Appellate authority in the impugned order has not considered the definition of non-taxable supply as defined in the CGST Act, 2017 and further contending that the sanctioning authority has rightly included the domestic supply in Adjusted Total Turnover and has rightly rejected a part of the refund claim of the assessee company and that the impugned order of the Appellate authority on the basis of which assessee company has claimed the aforesaid refund is not sustainable. Assessee company has opposed the instant Writ Petition of the CGST authority by contending mainly that i) this Writ Court should not interfere with the aforesaid impugned order of the Appellate authority by exercising its constitutional writ jurisdiction as an Appellate authority over the same, ii) there is no jurisdictional excess or error in passing the impugned order by the Appellate authority, iii) there is no error apparent on the face of record and iv) the view taken by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 60/- on account of supply of finished goods not subject to Cess. The reversal itself has been done by the authority on the basis that supply of finished goods not subject to Cess are exempt supplies for the purpose of Cess Act and which has not been questioned by the revenue authorities. However, while in determination of refund amount, the supply of finished goods not subject to Cess has been included in the adjusted total turnover although the formula prescribed in Rule 89(4) of the CGST Rules categorically provides for exclusion of the value of exempt supplies other than zero rated supplies while computing adjusted total turnover. This contrary stand of the Revenue authorities is wholly unsustainable. On perusal of relevant records available, facts appear to me in brief in these two Writ Petitions are as hereunder. M/s Electrosteel Castings Limited/the assessee company is inter alia engaged in the manufacture of ductile iron spun pipes and fittings thereof. The Assessee inter alia uses coal as an input for manufacture of its finished goods which is subject to Cess @ Rs.400 per tonne in terms of Sl No. 39 of Notification No. 1/2017-Compensation Cess (Rate) dated 28 June, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by treating the same as exempt supplies. The Assessee preferred an appeal before the Appellate Authority under Section 107 (1) of the CGST Act challenging the order in question passed by the Adjudicating Authority. The Appellate Authority by its order dated 5 th February, 2021, allowed the aforesaid appeal of the assessee company and consequently, allowed refund of Rs. 1,71,20,724/-. On the basis of the aforesaid order of the Appellate authority, the Assessee filed application for refund of cess in terms of Circular No. 111/30/2019-GST dated October 03, 2019 which according to the petitioner has not been considered by the CGST authority concerned till date in spite of its repeated request. On perusal of scheme of the Cess Act which is relevant for adjudication of this case, legal position can be summarized as hereunder. The parliament enacted the Cess Act to provide for compensation to the States for the loss of revenue arising on account of implementation of the Goods and Services Tax in pursuance of the provisions of the Constitution (One Hundred and First Amendment) Act, 2016. Section 2 (1)(c) of the Cess Act defines Cess to mean the goods and services tax compens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntegrated Goods and Services Tax Act, 2017 and includes non-taxable supply. Thus, finished goods supplied by the Assessee domestically which attract nil rate of Cess in term of Sl. No. 56 of the said Notification should be construed as exempt supplies and is therefore required to be excluded from adjusted total turnover for the purpose of computation of refund of ITC of Cess in terms of Rule 89 (4) of the CGST Rules. The term mutatis mutandis has been discussed by the Hon ble Supreme Court in several cases as under: a) Rajasthan State Industrial Development and Investment Corporation and Another Vs. Diamond Gem Development Corporation Ltd. Another [(2013) 5 SCC 470] wherein it has been held at Para 18 that the phrase mutatis mutandis implies that provision contained in other part of the statute or other statute would have application as it is with certain changes in points of details. b) Paresh Chandra Chatterjee Vs. State of Assam Ors. [AIR 1962 SC 167] wherein it has been observed that the expression mutatis mutandis means with due alteration of details . Applying the ratio of the aforesaid judgments, it would be clear that goods which are subject to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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