TMI Blog2023 (1) TMI 289X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner-opposite party No.6 and the petitioner had already accepted such grant of refund based on claim set up on its own calculation. The claim for refund of unutilized input tax credit as found in the provisions of Section 16(3) of the IGST Act and Section 16(1) read with Section 54(1) of the GST Act is subject to manner, condition and restriction as prescribed . Section 2(87) of the GST Act defines the term prescribed to mean prescribed by rules made under this Act on the recommendations of the Council . Section 164 of the GST Act empowers the Government to frame rules. Refund of unutilized input tax credit has been provided under Section 54. Corresponding rules are found in Rule 89 of the GST Rules, which is in conformity with the powers conferred under Section 164 of the GST Act. The petitioner did not choose to avail the opportunity of personal hearing as instructed in the aforesaid notice/intimation, but challenged the same before this Court by way of writ petition. This Court is, therefore, of the opinion that the petitioner is not deprived of availing alternative remedy to question the legality of decision taken by the Assistant Commissioner-opposite party N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.2020 bearing DIN No. 20200962WK00004JIFAA, and impugned order dated 13.11.2020 bearing DIN No. NIL (Annexure-9 Series); and/or (c) Issue appropriate writ, order or direction directing the Respondent CBIC to refrain from issuing instructions interfering with the quasi-judicial powers of the adjudicating authorities; and/or (d) Issue an appropriate writ, order or direction to Respondents to allow the supplementary refund applications (Annexure-8 series) on unit-wise basis as per Section 16(3) of IGST Act read with Section 54 of the CGST/SGST Act; and/or (e) Alternatively, issue appropriate writ, order, or direction to Respondents to allow Petitioner to file refund application electronically on common portal for the periods September 2017 to January 2018, and August 2018, September 2018, November 2018 to February 2020; and/or (f) Issue appropriate writ, order or direction to read down Rule 89(4) of CGST/SGST Rules (Annexure-1); and/ or (g) Issue appropriate writ, order or direction to quash Rule 89(4) of CGST/SGST Rules for being ultra-vires the provisions of parent Act (Annexure-1); and/or (h) Issue an appropriate writ, order or direction to the Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner-company is that the Jharsuguda unit using inputs like coal, petroleum coke, calcined alumina and coal tar pitch to bring out outputs such as aluminium ingots, aluminium billets and aluminium rods, made export supplies (zero-rated supplies) and also made supplies to persons located in Domestic Tariff Area. Likewise, while the Lanjigarh unit utilised bauxite and coal to manufacture calcined alumina, the Jharsuguda Power Plant using coal generated electricity and both of them supplied output to unit located in Special Economic Zone (zero-rated) as also persons in Domestic Tariff Area. Upon payment of Compensation Cess on the procurement of coal for use as input, the petitioner sought for refund of unutilized input tax credit on account of zero-rated supplies falling within the ambit of Section 16 of the Integrated Goods and Services Tax Act, 2017 (for brevity, IGST Act ). 2.2. As is required under Section 54(3) of the GST Act read with Rule 89(4) of the Central Goods and Services Tax Rules, 2017/the Odisha Goods and Services Tax Rules, 2017 (collectively be referred to as GST Rules ), the petitioner applied for refund of unutilized input tax credit including Compensatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dingly, circular No. 125/44/2019-GST dated 18.11.2019 stands modified to that extent i.e. the restriction on bunching of refund claims across financial years shall not apply. 4- It is pertinent to mention here that you have already taken the benefit of refund for the aforesaid period as mentioned in Table-A appended hereinbefore and now claiming supplementary refund on the basis of separate unit wise calculation of the refund eligibility for the said period and under the same category, which appears to be not tenable in as much as the provisions of Section 54 of CGST Act, 2017, do not provide for filing of supplementary refund claim after filing original refund claim for the same period. Also Circular 125/44/2019-GST does not allow for the filing of supplementary refund after filing refund claim for the same period. 5. Moreover, your company has single GSTIN i.e. 21AACCS7101B1Z8 for all the aforesaid 3 units and statutory GST Returns such as GSTR 3B, GSTR 1, GSTR 9 etc. are also filed on consolidate basis for all the said 3 units together. Hence, filing of supplementary refund claim considering unit-wise refund eligibility does not appear to be just and proper. 6- A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nit-wise unutilized input tax credit has clearly deviated from avowed purport of Rule 89. 3.3. Whereas provisions of Section 54 read with Rule 89 do not prohibit claim of additional/supplementary refund of tax under same category under which already refund was claimed, the Circular being No.125/44/2019-GST, dated 18th November, 2019 could not place such restriction as the same is ultra vires said provisions in view of dicta laid in CCE Vrs. Ratan Melting and Wire Industries, 2008 (12) STR 416 (SC) = (2008) 13 SCC 1. Mr. Puneet Agrawal, learned Advocate for the petitioner would urge that owing to the restriction imposed in Circular No. 125/44/19-GST, dated 18.11.2019, to the effect that the application for refund could be filed only by way of electronic mode, being contrary to Rule 97A of the GST Rules, the petitioner has been deprived of the benefit of eligible refund of the unutilised input tax credit for the periods in question computed unit-wise. Further not allowing it to submit application electronically on the common GSTN portal for previous period has occasioned the disablement of the option for filing the refund of unutilized input tax credit. 3.4. Rule 92(3) mand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Cess in respect of all the three units bearing common GSTIN which were duly processed and considered by the Department. The petitioner was, accordingly, granted refund on the basis of claims lodged. The impugned order reflects the following fact: The refund against the aforesaid ARN Nos. had already been sanctioned and payment had been made to you. However, at a later point of time it has sought to agitate further claim by way of filing supplementary refund application(s) treating the three units independent of each other even as they maintained single GSTIN. Such a course being not countenanced by any provision provided under the GST Act or the rules framed thereunder, the opposite party No.6-Assistant Commissioner rightly returned the said supplementary refund application(s). 4.4. Whether refund application filed manually was required to be considered by the authority concerned as posed by the petitioner vis- -vis Circular No.125/44/2019-GST, dated 18.11.2019 does not arise on the facts and in the circumstances of the case inasmuch as the petitioner-company has prayed for more refund (supplementary refund) by treating each unit independent than it claimed origin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 54 of the Central Goods and Services Tax Act or the rules made thereunder 5.3. Section 54(3) of the GST Act reads as follows: (3) Subject to the provisions of sub-section (10), a registered person may claim refund of any unutilised input tax credit at the end of any tax period: Provided that no refund of unutilised input tax credit shall be allowed in cases other than (i) zero-rated supplies made without payment of tax; (ii) where the credit has accumulated on account of rate of tax on inputs being higher than the rate of tax on output supplies (other than nil rated or fully exempt supplies), except supplies of goods or services or both as may be notified by the Government on the recommendations of the Council: Provided further that no refund of unutilised input tax credit shall be allowed in cases where the goods exported out of India are subjected to 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 dr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch on behalf of such supplier in relation to the goods or services or both supplied; (106) tax period means the period for which the return is required to be furnished; (107) taxable person means a person who is registered or liable to be registered under Section 22 or Section 24; 5.5. Close scrutiny of the provisions shows that the article a or the is accompanied to terms like person and registered person . Such article has significance in construing the purport of availing input tax credit and the context of refund of unutilized input tax credit. The word a has varying meanings and uses. A means one or any , but less emphatically than either. It may mean one where only one is intended, or it may mean any one of a great number. It is placed before nouns of the singular number, denoting an individual object or quality individualized. The meaning depends on the context. See, Black s Law Dictionary. The article A has been given the meaning of one of several things in Gujarat University Vrs. Shri Krishna Ranganath, AIR 1963 SC 703. In Shri Ishar Alloy Steels Limited Vrs. Jayaswals Neco Limited, (2001) 3 SCC 609 it has been stated that the ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l as some or one . Usage depends upon the context of subject-matter. The word any duty should and would encompass all and every type of refund payable under the Act. See, Pioneer India Electronics Pvt. Ltd. Vrs. Union of India, (2014) 26 GSTR 156 (Del). 6.2. Thus understood the meaning of the word any in the present context, sub-section (1) of Section 54 without any ambiguity admits that three units of the petitioner-company having common GSTIN they are to be treated as one person in terms of Section 25 read with clauses (84) and (94) of Section 2 of the GST Act. 6.3. Section 54(3) of the GST Act read with Section 16(3) of the IGST Act clarifies the position that claim for refund of unutilized input tax credit is required to be made at the end of the tax period. The term tax period has been defined under Section 2(106) of the GST Act to mean the period for which the return is required to be furnished . The three units of the petitioner-company being identified and recognized as single registered person in view of common GSTIN being allotted under Section 25 of the GST Act, the refund was calculated as per formula prescribed under Rule 89(4) of the GST Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The expressions rebate and concession in the commercial parlance have the same concept. In Halsbury s Laws of England, (4th Edn., Vol. 39, para 198) it is observed as under: Application for rebate.- When a rating authority receives an application for a rebate it has a duty to determine whether the residential occupier is entitled to a rebate and, if so, the amount to which he is entitled; and it must request him in writing to furnish such information and evidence as it may reasonably require as to the persons who reside in the hereditament, his income, and the income of his spouse. Unless the rating authority is satisfied that the residential occupier has furnished all the information and evidence it requires, it is under no duty to grant a rebate. 7.2. In the instant case, the authority concerned, having adjudicated the application for refund based on transactions of all the three units taken together as per the calculation made by the petitioner itself, had no scope for him to again entertain further claim made on the self-same transactions by computing such refund taking into consideration unit-wise figures, more so when the returns have been furnis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibed to mean prescribed by rules made under this Act on the recommendations of the Council . Section 164 of the GST Act empowers the Government to frame rules. Refund of unutilized input tax credit has been provided under Section 54. Corresponding rules are found in Rule 89 of the GST Rules, which is in conformity with the powers conferred under Section 164 of the GST Act. 8.3. The argument of the counsel for the petitioner that substantive right to claim refund of input tax credit could not be curtailed by procedural law is liable to be rejected. In TVS Motor Company Ltd. Vrs. State of Tamil Nadu and Ors., (2019) 13 SCC 403 , it has been observed as follows: 38. Thus, this case also concerned the same provision, namely, Section 19 of the TNVAT Act, though the issue raised was not the same which has arisen for consideration in these appeals. However, while answering the aforesaid question, the ITC scheme contained in Section 19 of the TNVAT Act was gone into and discussed at length. After reproducing Section 19, attributes of this provision were taken note of in the following manner: ( Jayam Co. Vrs. Commr., (2016) 15 SCC 125, SCC pp. 134-36, paras 10-13 ) 10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uage of sections of the VAT Act, read along with other provisions of the said Act as referred to above. 13. For the same reasons given above, challenge to constitutional validity of sub-section (20) of Section 19 of the VAT Act has to fail. When a concession is given by a statute, the Legislature has power to make the provision stating the form and manner in which such concession is to be allowed. Sub-section (20) seeks to achieve that. There was no right, inherent or otherwise, vested with dealers to claim the benefit of ITC but for Section 19 of the VAT Act. That apart, we find that there were valid and cogent reasons for inserting Section 19(20). Main purport was to protect the Revenue against clandestine transactions resulting in evasion of tax. The High Court has discussed [ Jayam and Co. Vrs. Commissioner, 2013 SCC OnLine Mad 2051 ] this aspect in detail and our task would be accomplished in reproducing those paras as we are concurring with the discussion: ( Jayam and Co. Vrs. Commissioner, 2013 SCC OnLine Mad 2051, SCC OnLine Mad paras 64-69) *** 69. Constitutional validity of fiscal legislation: When there is a challenge to the constitutional validity of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... single/common GSTIN at the choice of the petitioner and they have filed consolidated returns for the related tax periods, for the purpose of claiming refund the said figures cannot be taken unit-wise. Therefore, no infirmity could be imputed against the Revenue Authority who has considered the original refund application(s) taking the figures of all the three units together. However, by way of filing the supplementary refund application(s), which is claimed to have been submitted manually, the petitioner has posited for consideration the claim for refund of input tax credit based on unit-wise calculation afresh. In the considered opinion of this Court such a recourse for fresh consideration of refund already granted on the basis of claim made in the original refund application is untenable. 8.6. In Godrej Boyce Mfg. Co. Pvt. Ltd. Vrs. Commissioner of Sales Tax, (1992) 87 STC 186 (SC) the Supreme Court of India while considering the provisions for the grant of set-off under Rule 41(9) of the Bombay Sales Tax Rules, 1959, explained the rationale for a set-off in the following manner: A manufacturing dealer like the appellant pays purchase tax when he purchases raw mater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods are not sold within the State of Maharashtra but are despatched to out-State branches and agents and sold there, no sales tax can be or is levied by the State of Maharashtra. The State of Maharashtra gets nothing in respect of such sales effected outside the State. In respect of such sales, the rule-making authority could well have denied the benefit of set-off. But it chose to be generous and has extended the said benefit to such out-State sales as well, subject, however to deduction of one per cent of the sale price of such goods sent out of the State and sold there. We fail to understand how a valid grievance can be made in respect of such deduction when the very extension of the benefit of set-off is itself a boon or a concession. It was open to the rulemaking authority to provide for a small abridgement or curtailment while extending a concession. Viewed from this angle, the argument that providing for such deduction amounts to levy of tax either on purchases of raw material effected outside the State or on sale of manufactured goods effected outside the State of Maharashtra appears to be beside the point and is unacceptable. So is the argument about apportioning the sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In that hue, we find that Section 10 makes original tax invoice relevant for the purpose of claiming tax. Therefore, under the scheme of the VAT Act, it is not permissible for the dealers to argue that the price as indicated in the tax invoice should not have been taken into consideration but the net purchase price after discount is to be the basis. If we were dealing with any other aspect de hors the issue of ITC as per Section 19 of the VAT Act, possibly the arguments of Mr Bagaria would have assumed some relevance. But, keeping in view the scope of the issue, such a plea is not admissible having regard to the plain language of sections of the VAT Act, read along with other provisions of the said Act as referred to above. 8.8. In the context of ambiguity in case of exemption notification, Constitution Bench of the Honourable Supreme Court of India in the case of Commissioner of Customs Vrs. Dilip Kumar and Company, (2018) 9 SCC 1, observed as follows: 52. After considering the various authorities, some of which are adverted to above, we are compelled to observe how true it is to say that there exists unsatisfactory state of law in relation to interpretation of ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04 SC 2615; and Consumer Online Foundation Vrs. Union of India, (2011) 5 SCC 360.] 55. There is abundant jurisprudential justification for this. In the governance of rule of law by a written Constitution, there is no implied power of taxation. The tax power must be specifically conferred and it should be strictly in accordance with the power so endowed by the Constitution itself. It is for this reason that the courts insist upon strict compliance before a State demands and extracts money from its citizens towards various taxes. Any ambiguity in a taxation provision, therefore, is interpreted in favour of the subject/assessee. The statement of law that ambiguity in a taxation statute should be interpreted strictly and in the event of ambiguity the benefit should go to the subject/assessee may warrant visualising different situations. For instance, if there is ambiguity in the subject of tax, that is to say, who are the persons or things liable to pay tax, and whether the Revenue has established conditions before raising and justifying a demand. Similar is the case in roping all persons within the tax net, in which event the State is to prove the liability of the persons, as ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich these are understood in ordinary parlance in the area in which the law is in force or by the people who ordinarily deal with them. It is, however, necessary to bear in mind certain principles. The notification in this case was issued under Rule 8 of the Central Excise Rules and should be read along with the Act. The notification must be read as a whole in the context of the other relevant provisions. When a notification is issued in accordance with power conferred by the statute, it has statutory force and validity and, therefore, the exemption under the notification is as if it were contained in the Act itself. See in this connection the observations of this Court in Orient Wvg. Mills (P) Ltd. Vrs. Union of India, 1962 Supp (3) SCR 481 = AIR 1963 SC 98. See also Kailash Nath Vrs. State of U.P., AIR 1957 SC 790 . The principle is well settled that when two views of a notification are possible, it should be construed in favour of the subject as notification is part of a fiscal enactment. But in this connection, it is well to remember the observations of the Judicial Committee in Caroline M. Armytage Vrs. Frederick Wilkinson, (1878) LR 3 AC 355 (PC), that it is only, howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to benefit. 59. The above decision, which is also a decision of a two-Judge Bench of this Court, for the first time took a view that liberal and strict construction of exemption provisions are to be invoked at different stages of interpreting it. The question whether a subject falls in the notification or in the exemption clause, has to be strictly construed. When once the ambiguity or doubt is resolved by interpreting the applicability of exemption clause strictly, the Court may construe the notification by giving full play bestowing wider and liberal construction. The ratio of CCE Vrs. Parle Exports (P) Ltd., (1989) 1 SCC 345 = 1989 SCC (Tax) 84 deduced as follows : [ Union of India Vrs. Wood Papers Ltd., (1990) 4 SCC 256 = 1990 SCC (Tax) 422] , SCC p. 262, para 6) 6. Do not extend or widen the ambit at stage of applicability. But once that hurdle is crossed, construe it liberally. 60. We do not find any strong and compelling reasons to differ, taking a contra view, from this. We respectfully record our concurrence to this view which has been subsequently, elaborated by the Constitution Bench in CCE Vrs. Hari Chand Shri Gopal, (2011) 1 SCC 236. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notification, as in such a case it is for the assessee to show that he comes within the purview of exemption (see Novopan India Ltd. Vrs. CCE, 1994 Supp (3) SCC 606). 64. In CCE Vrs. Hari Chand Shri Gopal, (2011) 1 SCC 236 , as already discussed, the question was whether a person claiming exemption is required to comply with the procedure strictly to avail the benefit. The question posed and decided was indeed different. The said decision, which we have already discussed supra, however, indicates that while construing an exemption notification, the Court has to distinguish the conditions which require strict compliance, the non-compliance of which would render the assessee ineligible to claim exemption and those which require substantial compliance to be entitled for exemption. We are pointing out this aspect to dispel any doubt about the legal position as explored in this decision. *** 66. To sum up, we answer the reference holding as under: 66.1. Exemption notification should be interpreted strictly; the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proposition that incentive provisions must receive liberal interpretation or to say, leaning in favour of grant of relief to the assessee is not an approach countenanced by this Court. The law declared by the Constitution Bench in relation to exemption notification, proprio vigore, would apply to the interpretation and application of any akin proposition in the taxing statutes for exemption, deduction, rebate et al., which all are essentially the form of tax incentives given by the Government to incite or encourage or support any particular activity. 72. The principles laid down by the Constitution Bench, when applied to incentive provisions like those for deduction, would also be that the burden lies on the assessee to prove its applicability to his case; and if there be any ambiguity in the deduction clause, the same is subject to strict interpretation with the result that the benefit of such ambiguity cannot be claimed by the assessee, rather it would be interpreted in favour of the revenue. In view of the Constitution Bench decision in Dilip Kumar Co. (supra), the generalised observations in Commissioner of Income Tax, Thiruvananthapuram Vrs. Baby Marine Exports, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ghted and expounded by the Constitution Bench of this Court in the case of Commissioner of Wealth-Tax, Andhra Pradesh Vrs. Officer-in-Charge (Court of Wards), Paigah, (1976) 105 ITR 133 as follows (at p.137 of ITR): 8. It is true that in Raja Benoy Kumar Sahas Roy s case, [1957] 32 ITR 466 (SC) this court pointed out that meanings of words used in Acts of Parliament are not necessarily to be gathered from dictionaries which are not authorities on what Parliament must have meant. Nevertheless, it was also indicated there that where there is nothing better to rely upon, dictionaries may be used as an aid to resolve an ambiguity. The ordinary dictionary meaning cannot be discarded simply because it is given in a dictionary. To do that would be to destroy the literal rule of interpretation. This is a basic rule relying upon the ordinary dictionary meaning which, in the absence of some overriding or special reasons to justify a departure, must prevail. . 8.10. In Mahalaxmi Cotton Ginning Pressing and Oil Industries Vrs. State of Maharashtra, (2012) 51 VST 1 (Bom) it has been succinctly stated with regard to taxation policy vis- -vis claim for concession/set-off as f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Ltd., (2022) 2 SCC 603, has been pleased to hold that it is impermissible for the Court to redraw the boundaries or to expand the provision for refund beyond what the Legislature has provided. The said Court held as follows: 99. We must be cognizant of the fact that no constitutional right is being asserted to claim a refund, as there cannot be. Refund is a matter of a statutory prescription. Parliament was within its legislative authority in determining whether refunds should be allowed of unutilised ITC tracing its origin both to input goods and input services or, as it has legislated, input goods alone. By its clear stipulation that a refund would be admissible only where the unutilised ITC has accumulated on account of the rate of tax on inputs being higher than the rate of tax on output supplies, Parliament has confined the refund in the manner which we have described above. While recognising an entitlement to refund, it is open to the Legislature to define the circumstances in which a refund can be claimed. The proviso to Section 54(3) is not a condition of eligibility (as the assessees the counsel submitted) but a restriction which must govern the grant of refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdingly, less rigorous. In examining the allegations of a hostile, discriminatory treatment what is looked into is not its phraseology, but the real effect of its provisions. A legislature does not, as an old saying goes, have to tax everything in order to be able to tax something. If there is equality and uniformity within each group, the law would not be discriminatory. Decisions of this Court on the matter have permitted the legislatures to exercise an extremely wide discretion in classifying items for tax purposes, so long as it refrains from clear and hostile discrimination against particular persons or classes. 47. But, with all this latitude certain irreducible desiderata of equality shall govern classifications for differential treatment in taxation laws as well. The classification must be rational and based on some qualities and characteristics which are to be found in all the persons grouped together and absent in the others left out of the class. But this alone is not sufficient. Differentia must have a rational nexus with the object sought to be achieved by the law. The State, in the exercise of its governmental power, has, of necessity, to make laws operating diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the legislation, as such, is of general application and does not single them out for harsh treatment. Advantages or disadvantages to individual assessees are accidental and inevitable and are inherent in every taxing statute as it has to draw a line somewhere and some cases necessarily fall on the other side of the line. 106. The principles governing a benefit, by way of a refund of tax paid, may well be construed on an analogous frame with an exemption from the payment of tax or a reduction in liability CCT Vrs. Dharmendra Trading Co., (1988) 3 SCC 570 = 1988 SCC (Tax) 432. 107. In Elel Hotels Investments Ltd. Vrs. Union of India, (1989) 3 SCC 698, M.N. Venkatachaliah, J . (as the learned Chief Justice then was) held that : (SCC p. 708, para 20) 20. It is now well settled that a very wide latitude is available to the legislature in the matter of classification of objects, persons and things for purposes of taxation. It must need to be so, having regard to the complexities involved in the formulation of a taxation policy. Taxation is not now a mere source of raising money to defray expenses of Government. It is a recognised fiscal tool to achieve fiscal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me point is that a rule may provide a proportionate formula for determining the pro rata amount of ITC relatable to the inverted duty structure vis- -vis the total turnover. Such a formula is necessary where the assessee is engaged in outward supplies involving an inverted duty structure as well as those not involving an inverted duty structure. In fact, Mr. Sridharan in his submissions also accepts that such a formula would be a rule made for carrying out provisions of the Act. The third illustration in the link is with reference to exports. Under the CGST Act, ITC relatable to exports (which are zero-rated supplies) has to be refunded. The assessee may have both domestic sales as well as exports in which event there is a need for a proportionate formula. Rule 89(4) provides a formula for refund of ITC to cover a situation in which zero-rated supplies of goods or services or both has been done without payment of tax under bond or letter of undertaking in accordance with Section 16(3) of the IGST Act. *** 132. In our view, the justification of the formula under Rule 89(5) given by the ASG to create a legal bifurcation is valid. In this context, it would be material to adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court has only intervened to read down or interpret a formula if the formula leads to absurd results or is unworkable. In the present case however, the formula is not ambiguous in nature or unworkable, nor is it opposed to the intent of the Legislature in granting limited refund on accumulation of unutilised ITC. It is merely the case that the practical effect of the formula might result in certain inequities. The reading down of the formula as proposed by Mr. Natarjan and Mr. Sridharan by prescribing an order of utilisation would take this Court down the path of recrafting the formula and walk into the shoes of the executive or the Legislature, which is impermissible. Accordingly, we shall refrain from replacing the wisdom of the Legislature or its delegate with our own in such a case. However, given the anomalies pointed out by the assessees, we strongly urge the GST Council to reconsider the formula and take a policy decision regarding the same. (emphasis supplied) 8.12. In view of authoritative pronouncement of the Hon ble Supreme Court declining to substitute its wisdom for that of the subordinate legislation prescribed under Rule 89(5) in the context of refund on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Commissioner, GST Central Excise, Jharsuguda Division could be challenged in appeal under Section 107 of the GST Act. On this score also the writ petition fails. Conclusion and decision: 10. For the discussions made in the foregoing paragraphs and the reasons enumerated supra, it is held that: (i) Rule 89(4) of the Central Goods and Services Tax Rules, 2017/the Odisha Goods and Services Tax Rules, 2017 is intra vires and said rule being framed in conformity with the powers conferred on the Government under Section 164 of the Central Goods and Services Tax Act, 2017/the Odisha Goods and Services Tax Act, 2017, there is no necessity to read down Rule 89(4) as suggested by the petitioner-company; (ii) Having claimed refund of unutilized input tax credit on account of zero-rated supplies by clubbing up all the transactions relating to three units, namely, 2 MTPA Aluminium Refinery and Captive Power Plant at Lanjigarh; Jharsuguda 1215 MW Captive Power Plant; and Jharsuguda 2400 MW Thermal Power Plant, situated in Domestic Tariff Area bearing single/common GSTIN: 21AACCS7101B1Z8 granted in terms of Section 25, there is no scope for the petitioner-company to insist ..... 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