9911796707
TMI Blog2023 (11) TMI 1016X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing grounds: 2.1 According to the petitioner, the first respondent had procured the materials from the supplier, where the supplier paid IGST at the rate of 18% and made the supply. However, for the final product, the first respondent is liable to pay IGST only at the rate of 5%. Further he would contend that the supplier of the first respondent is also supposed to have paid only 5% IGST on the input product, but he had wrongly paid 18% IGST and since there is no inverted duty structure in this case, the refund application can be rejected on this ground. Hence, he would contend that since the second respondent had passed the impugned order without considering the above aspect, the said impugned order is liable to be set aside. 2.2 The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... product. However, now contrary to the same, he cannot take a different stand and contend that the first respondent is supposed to have paid 18% duty. Further, he would contend that the petitioner is taking contrary stands from time to time to suit their convenience and accordingly, they had filed the present petitions. Hence, he would submit that since all those aspects were well considered by the second respondent in the impugned order, these writ petitions are not sustainable and prays for dismissal of the same. In support of his contentions, he would refer to the following judgements: (i) Sarvesh Refractories (P) Ltd vs. Commissioner of C.EX & Customs reported in 2007 (218) E.L.T. 488 (S.C.) rendered by Hon'ble Apex Court and (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be notified by the Government on the recommendations of the Council:" 9. A reading of the above provision of Section 54(3)(ii) of the GST Act, makes it clear that if any rate of tax of input is higher than the rate of tax of output, the refund application can be filed to refund the excess amount paid in the input tax. 10. The contention of the petitioner was that if the tariff is higher rate for input and lower rate for the the final product, the first respondent is certainly entitled for refund in terms of Section 54(3) of GST Act. In the present case, the input product is chargeable only at the rate of 5%, however, it has been wrongly made at the rate of 18% by the vendor of the first respondent. Therefore, the first respondent cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner for the reason that at any cost, the petitioner cannot insist or advise the Assessee (first respondent) to pay excess rate of duty than the duty prescribed in the law. 13. In the judgement of the Hon'ble Apex Court in Sarvesh Refractories (P) Ltd vs. Commissioner of C.EX & Customs (mentioned supra), it has been held as follows: "6. The finding recorded by the Tribunal is unexceptionable. We agree with the view taken by the Tribunal that the appellant could not get the classification of 'Loadall' changed to Heading 84.27 from 84.29, as declared by the manufacturer. Insofar as the penalty imposed by the Authority in original is concerned, we are of the view that a case for imposition of penalty is not made out and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that there has been a service by BIL to the assessees in the matter of retrieval of data and service tax has been collected and paid by BIL and the correctness, legality or otherwise of the tax paid by the subject providers cannot be called in question by the Central Excise Officer having the jurisdiction over the assesses availing the credit. This question has not been considered. If the impugned orders are allowed to stand, then it would in effect mean that the jurisdictional assessment officers of the assesses are sitting in the judgment over the assessment made on BIL, over which, they have no jurisdiction." 15. The law laid down by the Hon'ble Apex Court and the Hon'ble Division Bench of this Court in the above said cases w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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