2022 (4) TMI 753 - HC - GST

Refund of IGST - Restoration / Re-credit to the ITC ledger - payment of IGST on exports, and thereafter claimed refund of such IGST on exports - advance license for duty free importation of raw material and export goods - benefit of the Notification No.79/2017-Customs dated 13.10.17 - HELD THAT - Under the scheme of the IGST Act, 2017, a registered person having an advance license shall be eligible for importing raw material without payment of import duty. As per Section 16(1)(a) of the IGST Act, export of goods or services or both falls within the ambit of 'zero rated supply', i.e. no IGST is applicable on exports of goods. As per Section 16(3) of the IGST Act, a registered person making 'zero rated supply' shall be eligible to claim refund - As per Rule 96(10) of the CGST Rules, a registered person importing raw-material without payment of import duty under the advance license shall not be eligible for utilizing accumulated ITC for payment of IGST on exports of goods or services. The writ-applicant is importing raw- material under the advance license without payment of the import duty. The finished goods produced using the raw-material so imported have been exported by the writ-applicant. The writ- applicant opted for the second route, i.e. payment of IGST on exports, and thereafter claimed refund of such IGST on exports instead of opting for the first route, i.e. exports under the Letter of Undertaking. However, inadvertently, the writ-applicant utilized the ITC for payment of the IGST on exports (instead of paying the IGST separately) which, in turn, was automatically refunded. In view of rule 96(10), the writ-applicant could not have utilized the ITC for payment of the IGST on exports. Upon realizing the aforesaid mistake, the writ-applicant separately paid the requisite IGST (which was refunded in past) along with the interest thereon. In so far as the erroneous grant of refund and return of such refund amount together with interest by the writ-applicant is concerned, the same is undisputed. That being the case, the first part of the transaction is nullified inasmuch as the amount erroneously refunded has already been repaid by the writ- applicant along with interest. However, once both these transactions are taken out from the equation, what survives is the reduction of the ITC originally effected from the electronic credit ledger of the writ-applicant. The respondent authorities are of the view that the writ-applicant is not entitled to such a refund of the ITC at all. According to Mr.Sharma, the learned AGP, such a refund is not permissible under sub-rule (10) of rule 96 of the CGST Rules. However, in the present case, refund as contemplated under sub-rule (10) of rule 96 of the CGST Rules is not at all an issue. It cannot be that for the purpose of repayment, there was an error, and for the purpose of restoration of the ITC, there was no error. There is no question of any refund of the ITC at all. The question is one of restoration of the ITC in the electronic credit ledger and not a refund thereof. Hence, any reference to sub-rule (10) of rule 96 of the CGST Rules is completely misconceived and not tenable - the respondent authorities are directed to re-credit/restore the ITC to the tune of ₹ 1,39,49,810/- in the electronic tax ledger of the writ- applicant. The respondent authorities are directed to restore/ re-credit the Input Tax Credit of ₹ 1,39,49,810/- in the electronic credit ledger of the writ-applicant within a period of two weeks from the date of receipt of this order - application disposed off.

Summary

Issues:
Claim for restoration of Input Tax Credit (ITC) utilized for payment of Integrated Goods and Services Tax (IGST) on exports, Ineligibility for ITC refund due to utilization for IGST payment, Constitutional validity of not restoring ITC, Interpretation of relevant GST laws and rules.

Analysis:

Issue 1: Claim for restoration of Input Tax Credit (ITC) utilized for payment of Integrated Goods and Services Tax (IGST) on exports
The petitioner, a company engaged in toy manufacturing, imported raw materials duty-free under an advance license for export. Due to an oversight, it paid IGST on exports instead of using a Letter of Undertaking. After realizing the error, the petitioner voluntarily paid IGST and interest, seeking restoration of ITC utilized for IGST payment. Despite repayment, the authorities did not restore the ITC. The Court directed the authorities to re-credit the ITC of ?1,39,49,810 in the electronic credit ledger, emphasizing the need for restoration to avoid double taxation.

Issue 2: Ineligibility for ITC refund due to utilization for IGST payment
The respondent argued against the petitioner's entitlement to a refund, citing the voluntary payment of IGST under Form-DRC-03. However, the Court clarified that the restoration of ITC was distinct from a refund. It highlighted that once the erroneously refunded amount was repaid, the ITC should be restored to prevent double taxation. The Court directed the authorities to re-credit the ITC in the petitioner's ledger, emphasizing the necessity to rectify the error and avoid unjust enrichment.

Issue 3: Constitutional validity of not restoring ITC
The petitioner contended that the failure to re-credit the ITC was against constitutional provisions. The Court noted that the petitioner, as an honest taxpayer, should not suffer due to a lack of mechanisms. It held that the authorities must restore the ITC to uphold principles of justice and prevent undue financial burden on the petitioner. The judgment emphasized the importance of rectifying errors promptly to maintain tax compliance and fairness in the system.

Issue 4: Interpretation of relevant GST laws and rules
The Court analyzed the provisions of the IGST Act and CGST Rules concerning zero-rated supplies, ITC utilization, and refund claims. It highlighted Rule 96(10) prohibiting ITC use for IGST payment on exports under an advance license. The judgment clarified that the case involved ITC restoration, not refund, and mandated the authorities to re-credit the ITC to prevent adverse financial implications on the petitioner. The decision underscored the need for accurate interpretation and application of GST laws to ensure taxpayer rights and compliance.