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TMI Blog2024 (9) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... 0950 24-7-2017 10075017521 1,44,118.00 1,92,157.00 2. 13/06.07.2017 KHPL/326/17-18 04.07.2017 7218237/ 07.07.2017 130414 15-7-2017 AMC0564386 10.07.2017 3,95,334.00 5,23,608.00 3. 52/14.07.2017 KHPL/332/17-18 14.07.2017 7381089/ 15.07.2017 129350 DT25-7-2017 DEL074463 18.07.2017 2,15,832.00 2,87,775.00 4. 11/04.07.2017 KHPL/334/17-18 04.07.2017 7218238/ 07.07.2017 130414 15-7-2017 FDS-NSA-1700102 10.07.2017 91,867.00 1,21,627.00 5. 12/04.07.2017 KHPL/335/17-18 04.07.2017 7216045/ 07.07.2017 130414 15-7-2017 FDS-NSA-1700102 10.07.2017 46,000.00 60,902.00 6. 10/04.07.2017 KHPL/336/17-18 06.07.2017 7218240/ 07.07.2017 130414 15-7-2017 FDS-NSA-1700102 10.07.2017 3,95,334.00 5,23,408.00 7. 15/06.07.2017 KHPL/337/17-18 06.07.2017 7218141/ 07.07.2017 130323 20-7-2017 AMC0567827 17.07.2017 1,97,667.00 2,61,701.00 8. 16/07.07.2017 KHPL/338/17-18 07.07.2017 7231270/ 08.07.2017 130448 21-7-2017 CNS-NSA-1700261 08.07.2017 39,651.00 58,565.00 9. 19/08.07.2017 KHPL/339/17-18 08.07.2017 7242030/ 10.07.2017 130752 8-7-2017 CNS-NSA-1700265 08.07.2017 43,674.00 62 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26-8-2017 FDS-NSA-1700126 24.08.2017 90,221.00 1,20,295.00 27. 272/17.08.2017 KHPL/373/17-18 17.08.2017 8068788/17.08.2017 132431 26-8-2017 FDS-NSA-1700126 24.08.2017 90,221.00 1,20,295.00 28. 273/17.08.2017 KHPL/374/17-18 17.08.2017 8068789/ 17.08.2017 132431 26-8-2017 FDS-NSA-1700126 24.08.2017 90,221.00 1,20,295.00 29. 283/19.08.2017 KHPL/375/17-18 19.08.2017 8121281/ 19.08.2017 133604 11-9-2017 CNS-NSA-1700352 21.08.2017 49,518.00 68,560.00 30. 284/19.08.2017 KHPL/376/17-18 19.08.2017 8121276/ 19.08.2017 133604 11-9-2017 CNS-NSA-1700351 21.08.2017 27,905.00 35,991.00 31. 398/04.09.2017 KHPL/386/17-18 04.09.2017 8440976/ 04.09.2017 133894 15-9-2017 FDS-NSA-1700137 08.09.2017 20,241.00 1,12,443.00 32. 399/04.09.2017 KHPL/387/17-18 04.09.2017 8441226/ 04.09.2017 133894 15-9-2017 FDS-NSA-1700137 08.09.2017 20,241.00 1,21,443.00 33. 400/04.09.2017 KHPL/388/17-18 04.09.2017 8441210/ 04.09.2017 133894 15-9-2017 FDS-NSA-1700137 08.09.2017 20,241.00 1,21,443.00 TOTAL:- 32,22,717.00 45,88,237.00 3. The Petitioner paid IG ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmed that, as while generating the shipping bill, the Petitioner had claimed higher rate of drawback at the rate of 9% by selecting column "A", instead of lower rate of drawback at the rate of 1.9% by selecting column "B", the Petitioner would not be eligible to avail refund of IGST. Thereafter, by a letter dated 13th March 2020 addressed to Respondent No.2, the Petitioner requested him to pay the said amount of refund at the earliest in accordance with the provisions of the statute. 7. Since the Respondents failed to refund the IGST amount of Rs.45,88,237/- claimed by the Petitioner, the Petitioner filed the present Petition seeking refund of the said amount. 8. After filing of this Petition, this Court passed an Order dated 25th September 2023, whereby the Respondents were directed to apply their mind to the application / letter of the Petitioner and take an appropriate decision before the next date of hearing. The Petitioner was also permitted to submit written submissions and the Respondents were directed to hear the Petitioner before taking a decision. 9. The Petitioner submitted detailed written submissions dated 3rd October 2023. The Petitioner was heard by the Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es not cover the case where drawback at a higher rate is claimed in regard to the exported goods. 14. Further, Mr. Trivedi submitted that the contention of the Respondents that refund is to be denied because of Notification No. 131/2016 - Cus. (N.T.) dated 31st October 2016, Notification No. 73/2017 - Cus. (N.T.) dated 26th July 2017, Circular No. 32/2017 dated 20th July 2017 and Circular No. 37/2018- Customs dated 9th October 2018 is completely erroneous. He submitted that the drawback provisions are separate, distinct and complete code in themselves. The provisions under Chapter - X of the Customs Act, i.e. Sections 74, 75, 75A and 76 as well as the Customs and Central Excise Duties Drawback Rules, 1995 and Customs and Central Excise Duties Drawback Rules, 2017 particularly provide for granting of drawback as well as recovery of drawback along with interest if it is found that the drawback is erroneously or wrongfully paid. 15. Mr. Trivedi further submitted that Notification No. 131/2016-Cus. (N.T.) dated 31st October 2016 relied upon by the Respondents would show that the same clearly incorporates that drawback is available subject to various notes and conditions. He submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re was no violation of the Circular and that the refund of IGST was required to be granted to the Petitioner. 19. As regards Circular No. 37/2018 - Customs dated 9th October 2018, Mr. Trivedi submitted that it is mentioned in paragraph 3 thereof that where the exporters have made declaration of not availing refund of IGST and on that basis they have claimed drawback at higher rate, no refund of IGST would be paid to them in regard to the exported goods. Mr. Trivedi submitted that no such declaration was given by the Petitioner. Further, the Petitioner had chosen to opt for not availing input tax credit as a condition for claiming drawback at higher rate in regard to the exported goods. Therefore, the said Circular did not prevent the Petitioner from getting refund of IGST paid on exported goods. 20. Mr. Trivedi submitted that the issue involved in the present Petition is covered by various judgements and refered to the following judgements: i Sunlight Cable Industries vs. The Commissioner of Customs NS II and 2 Ors. Judgement of Bombay High Court in Writ Petition No. 284 of 2021 dated 27th June 2023. ii Gujarat Nippon International Pvt.Ltd. vs. Union of India 2022 (64) G.S.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wback is incorrectly availed, the same can be recovered along with interest. 22. On the other hand, Mr. Mishra, appearing on behalf of the Respondents, defended the said Order dated 6th October 2023. Mr. Mishra, also submitted that the judgements on the issue show that, where refund of IGST has been ordered, the party has been directed to pay back the differential amount of drawback if higher drawback has been claimed by the party. 23. Mr. Mishra submitted that the Petitioner cannot claim IGST refund and retain drawback at the higher rate claimed by it. In support of his submissions, Mr. Mishra relied upon the following judgements: i) Kishan Lal Kuria Mal International vs. Union of India (Supra) ii) R.P. Exim vs. Pr. Commissioner of Customs (Supra) iii) Gujarat Nippon International Pvt. Ltd. vs. Union of India (Bom) (Supra) iv) Gujarat Nippon International Pvt. Ltd. vs. Union of India (Del.) (Supra) v) Real Prince Spintex Pvt. Ltd. vs. Union of India 2020 (35) G.S.T.L. 369 (Guj.) and the order of the Supreme Court dated 19th July 2021 dismissing the SLP against the same. 24. We have heard the learned Counsel for the parties and have considered the documents and judgeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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, then granting the IGST refund would amount to double benefit as the Central Excise and Service Tax has been subsumed in the GST. 29. In the present case, the Petitioner has selected Column "A" and claimed drawback at a higher rate on its own volition. It is not the case of the Petitioner that it had selected column "A" and claimed drawback at a higher rate due to some mistake. 30. The Petitioner has also not refunded or volunteered to refund the differential amount of drawback claimed by it. 31. As held by the Gujarat High Court, the higher duty drawback reflects the element of Customs / Central Excise and Service Tax taken together, and since higher duty drawback is already being availed of by the Petitioner, then granting the IGST refund would amount to double benefit as the Central Excise and Service Tax has been subsumed in the GST. The SLP against this decision of the Gujarat High Court has been dismissed by the Supreme Court on the ground that there was a clear finding of fact recorded by the Gujarat High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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