2020 (1) TMI 1285 - Commissioner - GST

Method of calculation of refund of unutilized ITC for CESS - Rule 89(4) of the CGST Rules 2017 - case of appellant is that the adjusted turnover has been taken wrongly as total turnover and only turnover of CESS should be treated as adjusted turnover, cannot be accepted in terms of definition of Adjusted Total Turnover as per Rule 89(4)(E) of the CGST Rules 2017 - HELD THAT - On plain reading of the definition of Adjusted Total Turnover it is very clear that the turnover of the CESS cannot be treated as Adjusted Total Turnover. Also the definition of Adjusted Total Turnover has not been dealt within the Circular No. 1/1/2017 as mentioned by the appellant. The appellant request to change the formula according to the said Circular cannot be entertained, as the Rule has overriding effect on Circular and also in the said Circular nowhere it is mentioned to change the formula for Adjusted Total Turnover. The submission of the appellant is not acceptable in terms of the legal provisions made under CGST Rules 2017 - Appeal dismissed.

Summary

Issues:
1. Appeal against Orders in Original for refund of unutilized ITC.
2. Dispute over the method of calculating refund.
3. Applicability of Circular on Compensation Cess.
4. Eligibility for refund based on Principle of Natural Justice.

Analysis:
1. The appeals were filed against Orders in Original for refund of unutilized Input Tax Credit (ITC) by M/s Sunil Enterprises. The adjudicating authority had both sanctioned and rejected parts of the refund claims for the months of March and April 2018.

2. The appellant contested the method of calculating the refund, arguing that only the turnover of CESS should be considered as adjusted turnover for refund calculation. However, the Additional Commissioner (Appeals) found that as per Rule 89(4) of the CGST Rules 2017, the turnover of the CESS cannot be treated as Adjusted Total Turnover. The appellant's request to change the formula based on a Circular was dismissed as the Rule has precedence over Circulars.

3. Regarding the Circular on Compensation Cess, the appellant claimed that no Cess should be charged on exported goods and that the remaining Cess would be a cost to exports if refunds were not allowed. However, the judgment did not find merit in this argument and did not entertain the request for changing the formula for Adjusted Total Turnover based on the Circular.

4. The appellant also raised concerns about the Principle of Natural Justice, stating that they had exported all goods subject to CESS and should be eligible for full refunds on those exports. However, the judgment did not find this argument compelling and rejected the appeals based on the legal provisions of the CGST Rules 2017.

In conclusion, the appeals were rejected by the Additional Commissioner (Appeals) based on the legal provisions and definitions outlined in the CGST Rules 2017, dismissing the appellant's arguments regarding the method of calculating refunds, Circular on Compensation Cess, and eligibility for refunds based on the Principle of Natural Justice.