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TMI Blog2024 (11) TMI 905X X X X Extracts X X X X X X X X Extracts X X X X ..... nded by Notification No. 54/2018- Central Tax dated 9.10.2018 (annexed at Annexure A) is applicably prospectively with effect from the date of the notification and the retrospectivity sought to be given to such notification is wholly without jurisdiction, manifestly arbitrary and violating Article 14 of the Constitution of India: B. This Hon'ble Court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other writ, order or direction quashing and setting aside show cause notice dated 31.3.2023 (annexed at Annexure B) issued on the basis of retrospective operation to Notification No. 54/2018- Central Tax dated 9.10.2018 as being wholly without jurisdiction, arbitrary and illegal; C. Pending notice, admission and final hearing of this petition, this Hon'ble Court may be pleased to stay further proceedings pursuant to impugned show cause notice dated 31.3.2023 (annexed at Annexure B) issued to Petitioner; D. Ex parte ad interim relief in terms of prayer C may kindly be granted; E. Such further relief(s) as deemed fit in the facts and circumstances of the case may kindly be granted in the interest of justice for which act of kindness you ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T and claim refund of unutilized input tax credit attributable to exports and (ii) export on payment of IGST and claim refund of such tax paid on exports. It was therefore solely up to the exporter as to which option he wanted to opt for. Acting on the basis of such clear statutory provision the Petitioner chose the second option of exporting the goods on payment of IGST. 14. Rule 96 of the CGST Rules provides that in case of exports made on payment of tax the shipping bill for export will itself be treated as an application for refund and the same will be processed online by the Customs department and accordingly the shipping bills of the petitioner were treated as refund applications and the Customs department duly granted refund of IGST paid on exports from time to time. 15. Sub-rule (9) was introduced in Rule 96 of the CGST Rules by notification dated 29.10.2017 w.e.f 23.10.2017 whereby the persons claiming refund of integrated tax paid on export of goods or services should not have received supplies on which the supplier has availed the benefit of notification No. 48/2017-Central Tax dated 18th October, 2017 or notification No. 40/2017-Central Tax (Rate) dated 23rd October, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pective substitution by Notification No 39/2018 was restored. 20. On the very same day, another Notification No. 54/2018-Central Tax dated 9.10.2018 was issued whereby Rule 96(10) (b) was amended prospectively so as to disbar refund of IGST paid on exports to importers who had availed benefit of import as Export oriented unit. 21. The cumulative effect of Notifications numbered 53 and 54/2018- Central Tax issued on 9.10.2018 was that the retrospective amendment of Rule 96(10) made by Notification No. 39/2018- Central Tax was done away with and the said amendment was made prospective with effect from 9.10.2018. 22. It is the case of the petitioner that it was conscious decision of the Goods and Services Tax Council to delete the retrospective effect given to Rule 96(10) of the CGST Rules so as to avoid reopening of earlier sanctioned refunds and in fact this was expressly clarified by the Central Board of Indirect Taxes and Customs vide circular number 70/44/2018-GST dated 26.10.2018. 23. On the basis of such amendments, Special Civil Application No 15091 of 2018 was disposed of as infructuous after recording the subsequent developments by way of issuance of Notifications No. 53 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n on payment of IGST after issuance of notification dated 9.10.2018 has been duly returned by the petitioner which fact was clearly conveyed to the respondents. The petitioner has even personally remained present before the respondents to present its case and has fully cooperated by providing the information pertaining to the imports made against advance authorization and the refunds claimed under the option of with payment of IGST. 28. However the petitioner received intimation in Form GST DRC- 01A proposing to recover IGST refund for the entire period starting from October 2017. 29. The petitioner objected to the proposed demand by pointing out that Notification No. 54/2018 Central Tax was prospectively introduced w.e.f. 9.10.2018 and therefore refund prior to such date ought not to be recovered. 30. It is the case of the petitioner that even then the respondents are insisting for recovery by retrospectively applying Notification No. 54/2018 - Central Tax dated 9.10.2018 and accordingly, impugned show cause notice dated 31.3.2023 has been issued to the petitioner for such purpose under Section 74 of the GST Acts on the basis of observations of this Court in the case of Cosmo F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1320 (E), dated the 23rd October, 2017 or notification No. 41/2017- Integrated Tax (Rate), dated the 23rd October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1321(E), dated the 23rd October, 2017; or (b) availed the benefit of notification No. 78/2017-Customs, dated the 13th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1272(E), dated the 13th 10 October, 2017 or notification No. 79/2017-Customs, dated the 13th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1299(E), dated the 13th October, 2017, the refund of input tax credit, availed in respect of inputs received under the said notifications for export of goods and the input tax credit availed in respect of other inputs or input services to the extent used in making such export of goods, shall be granted.". 3. In the said rules, in rule 96, for sub-rule (10), the following sub-rule shall be substituted, namely:- "(10) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule96 of the Central Goods and Services Tax Rules, 2017 (for short 'the CGST Rules') provides the mechanism, as per the procedure prescribed under Section 54 of the CGST Act and GGST Act. Subrule (10) of Rule96 of the CGST Rules was introduced vide para3 of Notification No. 54/2018Central Tax, dated 9th October 2018 issued by the respondent no.1 the Ministry of Finance with effect from 9th October, 2018 and corresponding provisions were also introduced in the GGST Rules by the respondent no.2 State of Gujarat." (ii) In para 4.5 words "with effect from 1 st July 2017" in third line from bottom shall stand deleted and further the words at the end of para "sub-rule (10) provides for the exemption for AA license holders importing goods from levy of custom duties and IGST" also stand deleted. (iii) In para. 4.6, the words "with effect from 23rd October, 2017" shall stand deleted in 13th line from the bottom of the para. (iv) In para. 8.3 in second line words "w.e.f 01.04.2017" stands deleted and is substituted by words "w.e.f. 01.07.2017". Para. 8.3 shall read as under: "8.3. After coming into force of GST regime w.e.f. 01.07.2017, Notification No. 79/2017- Customs, da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viii) In para 9 of the CAV judgment, words "with effect from 23rd October, 2017 in line 4 shall be deleted and substituted by words "with effect from 9th October, 2018" and last three lines of para 9 shall also stand deleted. Therefore, para 9 shall read as under: " 9. In view of above amendment , the grievance of the petitioner raised in this petition is therefore taken care of . However, it is also made clear that Notification No. 54/2018 is required to be made applicable w.e.f. 9th October, 2018 and not prior thereto from the inception of the Rule 96(10) of the CGST Act. Therefore, in effect Notification No. 39/2018 dated 4th September, 2018 shall remain in force as amended by the Notification No.54/2018 by substituting subrule (10) of Rule 96 of CGST Rules, in consonance with subsection (3) of Section 54 of the CGST Act and Section 16 of the IGST Act. Rule is made absolute to the aforesaid extent, with no order as to costs." 37. The above mistakes which are apparent on record are rectified and CAV judgment dated 20th October, 2020 therefore, now shall stand corrected accordingly. Registry to issue fresh writ accordingly. 38. Misc. Civil Application stands disposed of. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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