TMI Blog2024 (3) TMI 328X X X X Extracts X X X X X X X X Extracts X X X X ..... YMERS PVT. LTD. VERSUS THE UNION OF INDIA AND ORS. [ 2023 (9) TMI 1238 - BOMBAY HIGH COURT] where it was held that The Circular on which reliance is placed by the Respondents is dated 9th October, 2018, whereas the export was made on 25th July, 2017 and 5th September, 2017, which is much before the date of Circular. It is a settled position that the circular cannot be made applicable retrospectively. Even otherwise, the circular proceeds on a footing of claim of higher duty drawback and not where the rate of drawback is same and further more the circular also dose not deal with the rectification of mistake if suffix (A) is mentioned instead of suffix (B), while mentioning the HSN Code, which the facts in the instant case. The Respondent Authorities are directed to grant refund of IGST paid on goods exported by the Petitioner during the Transitional Period, after deducting the differential amount of duty drawback, i.e. grant refund of Rs. 30,04,591/- [Rs. 36,47,039 (Rs. 7,13,830 Rs. 71,382)], along with appropriate interest on such refund from the date of the shipping bill till the date of actual refund - the amount be released with simple interest, at the rate of 7%, to the Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of India 2021 (46) G.S.T.L. 31 (Guj.), as also the decision of the Division Bench of the Delhi High Court in Kishan Lal Kuria Mal Internation V./s. Union of India (2023) 95 GST 177 (Delhi)., this Court, in similar circumstances as in the present case, the Court had allowed the Petition by directing the Respondents to refund the IGST paid on the goods exported by the Petitioners therein. 3. We have perused the memo of the Petition and also the reply affidavit filed on behalf of the Respondents. We find substance in the contentions as urged on behalf of the Petitioner that the Petitioner would be entitled to the refund of IGST paid by the Petitioner during the transitional period, after deducting the differential amount of duty drawback, in terms of what has been placed on record at Exhibit-G (at page 120 of the Petition). 4. We find from the Reply Affidavit that, on the factual matrix, no dispute has been raised in regard to the dis-entitlement of the Petitioner in regard to the quantum as described, in the Shipping Bills itself, which, in terms of Rule 96 of the CGST Rules would amount to applications for refund. 5. We may refer to the observations of this Court in similar circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect of the goods in question. 11. This apart, in a similar situation where the claim of the assessee was not a claim to take a drawback at higher rate, the Gujarat High Court in Awadkrupa Plastomech (supra) in considering a prior decision in Amit Cotton Industries vs. Principal Commissioner of Customs, observed that is a situation when the claim made by the Petitioner was not to avail double benefit, that is of the IGST refund and the drawback, the Petitioner therein had become entitled to the IGST Refund. Relevant observations as made by the Division Bench are required to be noted, which read thus: 8. We are not impressed by such submission because the rates of higher and lower duty drawback remains the same i.e. two percent and no occasion would arise to refund the differential amount as argued by the learned counsel appearing for the revenue. The Circular No. 37/2018-Customs, dated 09/10/2018 referred to above by the Competent Authority would apply only to the cases, where the exporters have availed the option to take drawback at the higher rate in place of the IGST refund out of their own volition. In the instant case, the assessee had never availed the option to take drawbac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ack under column A and B for the product exported by the petitioner is the same. The said fact is not disputed by the respondents. It is only on technical ground that affixing suffix A claim of the petitioner is denied. The case of the petitioner is similar to the one decided by Gujarat High Court in the case of Awadkrupa Plastomech Pvt. Ltd. (supra) and confirmed by the Apex Court. 7. In view of the above, the petitioner succeeds. Respondents shall sanction the refund towards IGST paid in respect of the goods exported i.e. supply made by shipping. Of course, in case, if there is no other impediment, statutory interest shall follow. 13. Also in Kishan Lal Kuria Mal International vs. Union of India, the Division Bench of the Delhi High Court, following the decision of the Gujarat High Court in Amit Cotton Industries (supra) allowed the prayer for refund of the IGST. The following are the observations of the Court:- 8. Since the facts in the present cases are pari materia to the case in M/s. Amit Cotton Industries (supra), the present writ petitions are allowed directing the Respondent authorities to grant refund of IGST paid on the goods exported by the Petitioners during the transi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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