9911796707
TMI Blog2023 (11) TMI 952X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 29.06.2017 (Annexure P-5) and Notification No. 73/2017-Cus.(NT) dated 26.07.2017 (Annexure P6)] are (i) ultra vires Section 16 of the IGST Act, 2017 read with Section 54 of CGST Act, 2017 and Rule 96 of CGST Rules, 20177, & (ii) unconstitutional and violative of Article 14, 19 and 21 of the Constitution of India & Quash the same; b) Declare that Circular No.37/2018-CUSTOMS dated 09.10.2018 (Annexure P-10) is (i) ultra vires Section 16 of the IGST Act, 2017 read with Section 54 of CGST Act, 2017 and Rule 96 of CGST Rules, 2017, and (ii) unconstitutional and violative of Article 14,19 and 21 of the Constitution of India & Quash the same; c) Direct Respondent Authorities to grant refund of IGST, amounting to Rs. 7,98,444/-, paid in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion No. 73/2017-Cus.(NT) dated 26.07.2017) issued by Respondent No. 1 & (ii) Circular No.37/2018-Customs dated 09.10.2018 issued by Respondent No.2." 5. A taxpayer can be denied refund of IGST in respect of the goods exported by virtue of the impugned notifications and the circular dated 09.10.2018 if the taxpayer had claimed a higher duty drawback. The aforementioned notifications prescribe two rates of duty drawback in respect of the specified goods. The higher rate, as specified in column 'A', covers duty drawback to compensate the taxpayer in respect of customs duty, excise duty, service tax and other indirect taxes. The lower rate of drawback in column 'B' is to neutralize the effect of custom duty paid on inputs. Under the scheme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the higher duty drawback reflects the elements of Customs, Central Excise and Service Tax taken together and since higher duty drawback is already being availed than granting the IGST refund would amount to double benefit as the Central Excise and Service Tax has been subsumed in the GST. In the case of the writ-applicant, the drawback rates being the same, it represents only the Customs elements, which did not get subsumed in the GST and thus, the writ-applicant cannot be said to have availed double benefit i.e. of the IGST refund and higher duty drawback. 11. In the result, this petition succeeds and is hereby allowed. The respondents are directed to immediately sanction the refund towards the IGST paid in respect to the goods expor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .S.T.L.200 (Guj.). The relevant portion of the said judgment is reproduced hereinbelow:- "34. We take notice of two things so far as the circular is concerned. 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. 35. In view of the same, the writ-applicant is entitled to claim the refund of the IGST. 36. In the result, this writ-application succeeds a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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