2020 (1) TMI 1288 - Commissioner - GST

Refund of unutilized ITC accumulated on account of export of goods services - non-payment of integrated tax - refund claims were rejected by the adjudicating authority on the grounds that the appellant did not supply the information fall under Sub-rule (4A) or sub-rule (4B) of the CGST Rules, 2017 and in the refund claim nowhere mentioned that any supply under Rule 89(4A) of the CGST Rules, 2017 or otherwise - HELD THAT - As per Rule 89(4A) of the CGST Rules, 2017 as amended, the information in respect of Notification No.48/2017-Central Tax dated the 18 th October 2017 and rule 89(4B) of the CGST Rules, 2017 as amended, information in respect of Notification No.40/2017, 41/2017, dated 23 rd October 2017, 78/2017 79/2017-Central Tax (Rate) 13rd October 2017 has not been received/provided by the appellant and not followed the provisions of the circular No. 17/17/2017-GST dated 15.11.2017. Vide Para 41 of Circular No. 125/44/2019-GST dated 18.11.2019 it is clarified that certain supplies of goods have been notified as deemed exports vide notification No 48/2017-Central Tax dated 18.10.2017 under Section 147 of the CGST Act. Further, the third proviso to rule 89(1) of the CGST Rules allows either the recipient or the supplier to apply for refund of tax paid on such deemed export supplies. In case such refund is sought by the supplier of deemed export supplies, the documentary evidences as specified in notification No 49/2017-Central Tax dated 18.10.2017 are also required to be furnished which includes an undertaking that the recipient of deemed export supplies shall not claim the refund in respect of such supplies and shall not avail any input tax credit on such supplies. Similarly, in case the refund is filed by the recipient of deemed export supplies, an undertaking shall have to be furnished by him stating that refund has been claimed only for those invoices which have been detailed in statement 5B for the tax period for which refund is being claimed and that he has not availed input tax credit on such invoices. The procedure regarding procurement of supplies of goods from DTA by Export Oriented Unit (EOU)/Electronic Hardware Technology Park (EHTP)Unit/Software Technology Park (STP) Unit/Bio-Technology Parks (BTP) Unit under deemed export as laid down in Circular No. 14/14/2017-GST dated 06.11 2017 needs to be complied with Thus, the appellant being a 100% EOU was required to follow the procedure laid down in Circular 14/14/2017-GST dated 06.11 2017 which the appellant failed to do so. As per Rule 41 of CGST Rules, 2017 they were also required to transfer their unutilized credit to the new entity. The appellant neither cancelled their GSTIN by filing FORM REG-16 with effect from the date of order for amalgamation nor transferred their unutilized credit in FORM GST ITC-02 to new GSTIN, thus failed to follow the procedure as prescribed under Section 87 of CGST Act, 2017 read with Rule 41 of CGST Rules, 2017. Since the appellant has not followed the procedure prescribed under the Act/Rules/Circular as mentioned supra, they are not entitled for refund and rightly rejected by the adjudicating authority. Appeal dismissed.

Summary

Issues Involved:

1. Rejection of refund claims for unutilized ITC accumulated due to export of goods and services without payment of Integrated Tax.
2. Non-compliance with procedural requirements under Rule 89(4A) and Rule 89(4B) of the CGST Rules, 2017.
3. Non-adherence to the procedures prescribed under Section 87 of the CGST Act, 2017 and Rule 41 of the CGST Rules, 2017 following the amalgamation of the appellant company.

Issue-wise Detailed Analysis:

1. Rejection of Refund Claims for Unutilized ITC:

The appellant, a 100% Export Oriented Unit (EOU), filed refund claims for unutilized Input Tax Credit (ITC) accumulated due to the export of goods and services without payment of Integrated Tax for the months of July, August, and September 2017. The adjudicating authority rejected these claims on the grounds that the appellant did not supply the necessary information as per Sub-rule (4A) or Sub-rule (4B) of Rule 89 of the CGST Rules, 2017. The appellant contended that the rejection was unjust and arbitrary, arguing that the reasons for rejection were either irrelevant or technical in nature and that the adjudicating authority disregarded the provisions of the Act and Rules.

2. Non-compliance with Procedural Requirements under Rule 89(4A) and Rule 89(4B) of the CGST Rules, 2017:

The adjudicating authority noted that the appellant failed to provide information required under Notification No. 48/2017-Central Tax dated 18th October 2017 and Notification Nos. 40/2017, 41/2017, 78/2017, and 79/2017-Central Tax (Rate) dated 23rd October 2017. The appellant argued that they had not claimed refunds under Rule 89(4A) or 89(4B) and had submitted an undertaking that no refund of ITC had been claimed earlier in relation to the invoices submitted in the refund application. However, the authority emphasized the necessity of following the procedures laid down in Circular No. 14/14/2017-GST dated 6th November 2017, which the appellant failed to comply with.

3. Non-adherence to Procedures Prescribed under Section 87 of the CGST Act, 2017 and Rule 41 of the CGST Rules, 2017 Following Amalgamation:

The appellant company amalgamated with its parent company as per the Company Law Tribunal Order dated 14th September 2017. According to Section 87 of the CGST Act, 2017, and Rule 41 of the CGST Rules, 2017, the appellant was required to cancel the GSTIN of the old entity and transfer the unutilized credit to the new entity. The appellant failed to cancel the old GSTIN and did not transfer the unutilized credit as mandated. Consequently, the adjudicating authority rejected the refund claims, stating that the appellant did not follow the prescribed procedures under the Act, Rules, and Circulars.

Conclusion:

The appeals filed by the appellant were rejected, and the impugned orders passed by the adjudicating authority were upheld. The rejection was based on the appellant's failure to comply with the procedural requirements under Rule 89(4A) and 89(4B) of the CGST Rules, 2017, and non-adherence to the procedures prescribed under Section 87 of the CGST Act, 2017, and Rule 41 of the CGST Rules, 2017 following the amalgamation of the appellant company.