9911796707
TMI Blog2020 (10) TMI 1099X X X X Extracts X X X X X X X X Extracts X X X X ..... rection quashing and setting aside the amendments in sub-rule (10) of Rule 96 of the CGST Rules and GGST Rules substituted vide Notification Number 54/2018-Central Tax, dated 9 October 2018 and Notification No.54/2018-State Tax, No. (GHN 99) / GSTR-2018(33)TH, dated 9 October 2018, to the extent it denies the option of rebate claim to the Petitioner for importing goods under AA License, as being ultra vires of the CGST Act, GGST Act and Rules made thereunder and the Constitution; b) this Hon'ble Court may be pleased to issue a writ, order or direction staying any demand against Rebate benefits availed by the Petitioner due to retrospective operation of the impugned Notifications on Rule 96(10) of the CGST and the GGST Rules; c) this such further and other reliefs be granted as this Hon'ble Court may deem fit and proper." 4. The short facts of the case are as under: 4.1. The petitioner is a public limited company engaged in the business of manufacturing and sale of flexible packaging films. The petition is filed through its Director and Authorized person Mr. Anil Kumar Jain. 4.2. The petitioner is the holder of Advance Authorization Licenses ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pective effect from 23rd October, 2017, providing that rebate on exports cannot be availed by the petitioner, if the inputs procured by the petitioner have enjoyed AA benefits or Deemed Export Benefits under the said notification. Therefore, the petitioner was unable to utilize the benefit of dutyfree imports under AA Licenses and take the benefit of rebate on exports, because of the amendments made in Rule 96(10) of CGST Rules. It appears that, thereafter, by Notification No. 53/2018Central Tax dated 9th October 2018, subclause (a) and (b) of sub-rule 10 of Rule 96 of the CGST Rules were merged. Thereafter, vide Notification No. 54/2018-Central Tax dated 9th October 2018, the sub-rule 10 of Rule 96 of the CGST Rules was again demerged and "with effect from 23rd October, 2017" thereby indicating that Notification No. 54/2018-Central Tax do not intend to apply the amendment to Rule 96(10) of the CGST Rules retrospectively. The petitioner has therefore preferred this petition challenging the aforesaid notifications and amendments made in sub-rule 10 of Rule 96 of the CGST Rules, by Notification No. 54/2018 denying the option ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Institution and Organisation notified under the United Nations (Privileges and Immunities) Act, 1947, Consulate or Embassy of foreign countries or any other person or class of persons, as notified under section 55, entitled to a refund of tax paid by it on inward supplies of goods or services or both, may make an application for such refund, in such form and manner as may be prescribed, before the expiry of six months from the last day of the quarter in which such supply was received. (3) Subject to the provisions of sub-section (10), a registered person may claim refund of any unutilised input tax credit at the end of any tax period: Provided that no refund of unutilised input tax credit shall be allowed in cases other than-- (i) zero rated supplies made without payment of tax; (ii) where the credit has accumulated on account of rate of tax on inputs being higher than the rate of tax on output supplies (other than nil rated or fully exempt supplies), except supplies of goods or services or both as may be notified by the Government on the recommendations of the Council: Provided further that no refund of unutilised input tax credit shall be allowed in cases where t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ub-section (5), the refundable amount shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to- (a) refund of tax paid on export exports of goods or services or both or on inputs or input services used in making such zerorated supplies; (b) refund of unutilised input tax credit under sub-section (3); (c) refund of tax paid on a supply which is not provided, either wholly or partially, and for which invoice has not been issued, or where a refund voucher has been issued; (d) refund of tax in pursuance of section 77; (e) the tax and interest, if any, or any other amount paid by the applicant, if he had not passed on the incidence of such tax and interest to any other person; or (f) the tax or interest borne by such other class of applicants as the Government may, on the recommendations of the Council, by notification, specify. (9) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any court or in any other provisions of this Act or the rules made thereunder or in any other law for the time being in force, no refund shall be made except in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upplies of goods or services or both or on inputs or input services used in making such zerorated supplies, or refund of tax on the supply of goods regarded as deemed exports, or refund of unutilised input tax credit as provided under sub-section (3). (2) "relevant date" means- (a) in the case of goods exported out of India where a refund of tax paid is available in respect of goods themselves or, as the case may be, the inputs or input services used in such goods,-- (i) if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India; or (ii) if the goods are exported by land, the date on which such goods pass the frontier; or (iii) if the goods are exported by post, the date of despatch of goods by the Post Office concerned to a place outside India; (b) in the case of supply of goods regarded as deemed exports where a refund of tax paid is available in respect of the goods, the date on which the return relating to such deemed exports is furnished; (c) in the case of services exported out of India where a refund of tax paid is available in respect of services themselves or, as the case may be, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supplies in FORM GSTR-1 for a tax period has been extended in exercise of the powers conferred under section 37 of the Act, the supplier shall furnish the information relating to exports as specified in Table 6A of FORM GSTR-1 after the return in FORM GSTR-3B has been furnished and the same shall be transmitted electronically by the common portal to the system designated by the Customs: Provided further that the information in Table 6A furnished under the first proviso shall be autodrafted in FORM GSTR-1 for the said tax period.] (3) Upon the receipt of the information regarding the furnishing of a valid return in FORM GSTR-3 [or FORM GSTR-3B, as the case may be] from the common portal, [the system designated by the Customs or the proper officer of Customs, as the case may be, shall process the claim of refund in respect of export of goods] and an amount equal to the integrated tax paid in respect of each shipping bill or bill of export shall be electronically credited to the bank account of the applicant mentioned in his registration particulars and as intimated to the Customs authorities. (4) The claim for refund shall be withheld where,&s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the 23rd October, 2017, published 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 has been availed; or (b) availed the benefit under 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 October, 2017 or notification No.79/2017Customs, 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 except so far it relates to receipt of capital goods by such person against Export Promotion Capital Goods Scheme.]" 5.4. Notification No. 40 of 2017-C.T. (Rate) dated 23 Oct 2017 read as under: "Reduced CGST Rates prescribed for supply of taxable goods by a registered supplier to a re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Port, Inland Container Deport, Airport or Land Customs Station from where they shall be exported; (viii) in case of situation referred to in condition (vii), the registered recipient shall endorse receipt of goods on the tax invoice and also obtain acknowledgement of receipt of goods in the registered warehouse from the warehouse operator and the endorsed tax invoice and the acknowledgment of the warehouse operator shall be provided to the registered supplier as well as to the jurisdictional tax officer of such supplier; and (ix) when goods have been exported, the registered recipient shall provide copy of shipping bill or bill of export containing details of Goods and Services Tax Identification Number (GSTIN) and tax invoice of the registered supplier along with proof of export general manifest or export report having been filed to the registered supplier as well as jurisdictional tax officer of such supplier. 2. The registered supplier shall not be eligible for the above mentioned exemption if the registered recipient fails to export the said goods within a period of ninety days from the date of issue of tax invoice." 5.5. Notification No. 41/2017-Integrated Tax (R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a registered warehouse from where the said goods shall be move to the Port, Inland Container Deport, Airport or Land Customs Station from where the said goods are to be exported; (vii) if the registered recipient intends to aggregate supplies from multiple registered suppliers and then export, the goods from each registered supplier shall move to a registered warehouse and after aggregation, the registered recipient shall move goods to the Port, Inland Container Deport, Airport or Land Customs Station from where they shall be exported; (viii) in case of situation referred to in condition (vii), the registered recipient shall endorse receipt of goods on the tax invoice and also obtain acknowledgement of receipt of goods in the registered warehouse from the warehouse operator and the endorsed tax invoice and the acknowledgement of the warehouse operator shall be provided to the registered supplier as well as to the jurisdictional tax officer of such supplier; and (ix) when goods have been exported, the registered recipient shall provide copy of shipping bill or bill of export containing details of Goods and Services Tax Identification Number (GSTIN) and tax invoice of the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the words "an exporter of goods" shall be substituted; (b) in sub-rule (2), for the words "relevant export invoices", the words "relevant export invoices in respect of export of goods" shall be substituted; (c) in sub-rule (3), for the words "the system designated by the Customs shall process the claim for refund", the words "the system designated by the Customs or the proper officer of Customs, as the case may be, shall process the claim of refund in respect of export of goods" shall be substituted; (d) for sub-rule (9), the following sub-rules shall be substituted, namely : "(9) The application for refund of integrated tax paid on the services exported out of India shall be filed in FORM GST RFD01 and shall be dealt with in accordance with the provisions of rule 89". (10) The persons claiming refund of integrated tax paid on exports of goods or services should not have received supplies on which the supplier has availed the benefit of the Government of India, Ministry of Finance, notification No.48/2017Central Tax, dated the 18th October, 2017 published in the Gazette of India, Extraordinary, Part II, Section 3, sub-section (i), vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 5.9. Notification No.53/2018-C.T. dated 09 Oct 2018 reads as under: "Central Goods and Services Tax Rules, 2018 - Eleventh Amendment of 2018 In exercise of the powers conferred by section 164 of the Central Goods and Services Tax Act, 2017 (12 of 2017), the Central Government hereby makes the following rules further to amend the Central Goods and Services Tax Rules, 2017, namely : 1. (1) These rules may be called the Central Goods and Services Tax (Eleventh Amendment) Rules, 2018. (2) They shall be deemed to have come into force with effect from the 23rd October, 2017. 2. In the Central Goods and Services Tax Rules, 2017, in rule 96, for sub-rule (10), the following sub-rule shall be substituted and shall be deemed to have been substituted with effect from the 23rd October, 2017, namely : "(10) The persons claiming refund of integrated tax paid on exports of goods or services should not have received supplies on which the supplier has availed the benefit of the Government of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 October, 2017 or notification No. 79/2017Customs, 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) The persons claiming refund of integrated tax paid on exports of goods or servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate mode under Rule 96 (10) as amended by the impugned Notification No. 54 of 2018 w.e.f. 23rd October 2017, if the suppliers of the petitioner avails Deemed Export benefits while supplying materials to the petitioner from DTA. 6.3. Mr. Rastogi further submitted that, till 23rd October 2017, the petitioner was eligible to opt for the rebate of IGST paid on exports without any restriction, however, w.e.f. 23rd October 2017, on account of the amendment in Rule 96(10) , the petitioner is not able to avail export benefits under the rebate, if the petitioner imported goods under AA Licenses issued prior to 23rd October 2017. 6.4. The learned advocate Mr. Rastogi therefore submitted that the action of the respondents suffers from the vices of excessive delegation by the impugned notifications denying the benefit of 'Zerorated' exports conferred upon the petitioner through Section 16(3)(b) of the CGST Act by imposing arbitrary restrictions upon the petitioner, so that they are unable to claim rebate benefits from the Government. 6.5. It was submitted that the petitioner is entitled to rebate of IGST on exports under Section 16 of the IGST Act r/w. Section 54 of the CGST Act, as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule89 of the CGST Rules, wherein, it is specifically provided that the AA License holder should not claim input tax credit. The reliance was placed to third proviso of Rule89(1) which reads as under: " Third proviso to Rule 89(1) Provided also that in respect of supplies regarded as deemed exports, the application may be filed by, (a) the recipient of deemed export supplies; or (b)the supplier of deemed export supplies in cases where the recipient does not avail of input tax credit on such supplies and furnishes an undertaking to the effect that the supplier may claim the refund." Thereafter, reliance was placed on the definition of Net ITC. Rule 89(4A) of the CGST Rules, which reads as under: "Definition of Net ITC and Rule 89(4A) "Net ITC" means input tax credit availed on inputs and input services during the relevant period other than the input tax credit availed for which refund is claimed under subrules (4A) or (4B) or both; (4A) In the case of supplies received on which the supplier has availed the benefit of the Government of India, Ministry of Finance, notification No.48/2017 Central Tax dated the 18th October, 2017 published in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arbitrary and unreasonable, as benefit under rebate claim cannot exceed the amount of input tax credit taken which is allowed to be taken by AA license holders is restricted in case of Deemed Export benefits or Merchant Export Benefits. 6.14. It was submitted by the learned Advocate Mr. Rastogi that the respondents have issued the impugned notifications, while exercising powers under Section 164 of the CGST Act, but the provision of Section 164 of the CGST Act can be invoked only where a provision is specifically required to be prescribed by the respondents. It was submitted that, sub-section (2) of Section 164 specifically states that the power to make rules is only to the extent required by the CGST Act and accordingly, such powers can be exercised only subject to and subservient to the respective provisions of the GST law. It was therefore submitted that rebate mode or refund mode prescribed under the Rules should be in accordance with Section 16 of the IGST Act or Section 54 of the CGST Act. 6.15. Mr. Rastogi therefore submitted that amended sub-rule 10 of Rule 96 restricts rebate claims in case of AA License holders without any reasonable basis to justify impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce was placed on ArticleXVI of the General Agreement on Tariffs and Trade, 1994 (Note to Article XVI) and the provisions of AnnexuresI to III of the Agreement on Subsidies and Countervailing Measures, the exemption or remission of duties and taxes on exported products, so as not to bring such measures to be subsidy and hence, is permitted. It is a settled international practice to export only the goods and services and not the taxes suffered thereon. It was further submitted that, the petitioner is unable to get back the transitional credit either through the refund mode or the rebate mode, the petitioner would be constrained to writeoff this amount and pass on the burden of such amount to its foreign customers, which would lead to a situation of export of taxes, which is against the policy of the respondent no.1. 6.21. Lastly, reliance was placed on the statement of objects and reasons to the Constitution Amendment Bill introducing the GST regime in India, wherein, it is specified that removal of the cascading effect of taxes is one of the objectives of GST and hence, smooth pass through of credits is the stated objective of the GST regime and denial of benefit on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been made in terms of law. 10. I say that the retrospectivity of the amendments made to sub-rule (10) of rule 96 of the CGST rules was nullified vide issuance of notification No.53/2018Central Tax dated 09.10.2018, which restored the position of rule 96(10), with retrospective effect (i.e. w.e.f. 23.10.2017) as it existed before the issuance of Notification No.39/2018Central Tax dated 04.09.2018. Further, vide notification No. 54/2018Central Tax dated 09.10.2018, an exception was carved from the restriction imposed by sub-rule (10) of rule 96 for those exporters who are importing capital goods under the EPCG scheme. 11. I say that the petitioner further challenges that Rule 96(10) of CGST/GGST Rules, 2017 inserted vide Para 6 of Notification No.39/2018Central Tax/State Tax, dated 04.09.2018 violates the Article 14 of Constitution of India. In this regard, I say that it is well-established that Article 14 forbids class legislation but does not forbid classification. Permissible classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and the differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T Rules, 2017 inserted vide Para 6 of Notification No.39/2018-Central Tax/State Tax, dated 04.09.2018 does not violate Article 14 of the Constitution of India. 12. I say that the petitioner further challenges that Rule 96(10) of CGST/GGST Rules, 2017 inserted vide Para 6 of Notification No.39/2018Central Tax/State Tax, dated 04.09.2018 violates the Article 19(1)(g) of Constitution of India. In this regard, I say that Article 19(1)(g) of the Constitution guarantees the citizens of India a right to carry on any occupation, trade or business. The petitioners had no carry on any occupation, trade or business. The petitioners had no occasion to demonstrate their case in the test of arbitrariness. The petitioner is still entitled to the full enjoyment of this freedom even after implementation of the notification, ibid, and the legislature has not infringed his right to trade under Article 19(1)(g) of the Constitution. 13. In view of whatever is stated hereinabove it is stated that the Petitioners have no case on merits or otherwise and hence, the present Petition deserves to be dismissed." 7.3. Relying on the aforesaid averments made in the affidavitinrepl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (manufacturing dealer) purchases his raw material both within the State of Maharashtra and outside the State. Insofar as the purchases made outside the State of Maharashtra are concerned, the tax thereon is paid to other States. The State of Maharashtra gets the tax only in respect of purchases made by the appellant within the State. So far as the sales tax leviable on the sale of the goods manufactured by the appellant is concerned, the State of Maharashtra can levy and collect such tax only in respect of sales effected within the State of Maharashtra. It cannot levy or collect tax in respect of goods which are despatched by the appellant to his branches and agents outside the State of Maharashtra and sold there. In law (apart from Rules 41 and 41A) the appellant has no legal right to claim setoff of the purchase tax paid by him on his purchases within the State from out of the sales tax payable by him on the sale of the goods manufactured by him. It is only by virtue of the said Rules which, as stated above, are conceived mainly in the interest of public that he is entitled to such setoff. It is really a concession and an indulgence. More particularly, where the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (3) of Section 11." 7.4. Mr. Desai also relied upon the decision of the Division Bench of this Court in case of Willowood Chemicals Pvt. Ltd. v. Union of India rendered on 12th / 19th September, 2018 in Special Civil Application No. 4252 of 2018, wherein, the constitutionality of second proviso to Section 140 (1) of the CGST Act was upheld. The reliance was placed on the following observations of the said judgment which reads as under: "17 Effectively and essentially, this is what the present provisos of sub section [1] of Section 140 of the GGST Act do. As per the main provision, credit would be available on the amount of Value Added Tax and Entry Tax carried forward in the return. As per the further proviso or the second proviso, such credit to that extent would not be transferred when necessary declarations are not furnished by the dealer. The proviso thereafter however ensures that as and when declarations are filed, the amount equivalent to credit specified in the second schedule would be refunded to the dealer. We do not find any major change in the effect of late production of the forms by a dealer in the present statutory provisions; as compared to the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods held in stock on the appointed day. Sub rule (1) of Rule 117 provides that every registered person entitled to take credit of the input tax under Section 140, shall within ninety days of the appointed day, submit a declaration electronically in the prescribed format, duly signed, on the common portal specifying separately the amount of input tax credit to which he is entitled under the provisions of the said section. Proviso to sub rule [1] envisages extension of period for making the said declaration on the recommendations of the Council. We have noted that such time limit was extended from time to time and finally upto 27th December 2017. A limited extension has thereafter been granted by the Government by inserting sub rule [1A] in Rule 117, authorizing the Commissioner to extend the date for submitting the declaration electronically by a further period not beyond 31st March 2019, in respect of registered persons who could not submit the said declaration by the due date on account of technical difficulties on the common portal and in respect of whom, the Council has made recommendation for such extension. Effectively thus, the last date for filing the declaration under sub r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f which provisions are to be or may be made by rules. [3] The power to make rules conferred by this section shall include the power to give retrospective effect to the rules or any of them from a date not earlier than the date on which the provisions of this Act comes into force. [4] Any rules made under sub section (1) of sub section(2) may provide that a contravention thereof shall be liable to a penalty not exceeding ten thousand rupees." 23 Under sub section [1] of Section 164 of the CGST Act, thus, the Government on recommendations of the Council, by notification, could make rules "for carrying out the provisions of the Act". This rule making power is thus couched in the widest possible manner empowering the Government to make the rules for carrying out the provisions of the Act." Sub section [2] to Section 164 is equally widely worded, when it provides that, "without prejudice to the generality of the provisions of sub section (1), the Government may make rules for all or any of the matters which by this Act are required to be, or may be, prescribed or in respect of which provisions are to be, or may be made by the rules." Sub section [3] of Section 164, to which we are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of the Act on recommendations of the Council. Sub section [2] of Section 164 further provides that without prejudice to the generality of the provisions of sub section [1], the Government could also make rules for all, or any of the matters, which by this Act are required to be or may be prescribed or in respect of which, provisions are to be or may be made by the rules. Combined effect of the powers conferred to subordinate legislature under sub sections [1] and [2] of Section 164 of the CGST Act would convince us that the prescription of time limit under sub rule [1] of Rule 117 of the CGST Rules is not ultra vires the Act. Likewise, such prescription of time limit cannot be stated to be either unreasonable or arbitrary. When the entire tax structure of the country is being shifted from earlier framework to a new one, there has to be a degree of finality on claims, credits, transfers of such credits and all issues related thereto. The petitioners cannot argue that without any reference to the time limit, such credits should be allowed to be transferred during the process of migration. Any such view would hamper the effective implementation of the new tax structure and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id Advance Authorization issued by the Regional Authority in terms of paragraph4.03 of the Foreign Trade Policy, from the whole of the duty of customs leviable thereon, which is specified in the First Schedule to the Customs Tariff Act, 1975 and from the whole of the additional duty leviable thereon under sub-sections (1), (3) and (5) of Section 3 thereon, and Integrated Tax leviable thereon under sub-section (7) of section 3 of goods and service tax compensation Cess leviable thereon under sub-section (9) of Section 3, safeguard duty leviable thereon under Section 8B, countervailing duty leviable thereon under Section 9 and antidumping duty leviable thereon under Section 9A of the Customs Tariff Act, subject to the conditions stated in the said notification. 8.3. After coming into force of GST regime w.e.f. 01.04.2017, Notification No. 79/2017Customs, dated 13th October 2017 was issued amending the Notification No. 18/2015 by inserting condition (viii) as under: Sr. No. Notification Number and date Amendments 2. 18/2015Customs, dated the 1st April, 2015 [vide number G.S.R. 254(E), dated the 1st April, 2015] In the said notification, in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CGST Act. Rule 96 (10) as it originally existed, when the Rules came into force provided that 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 from Government of India, Ministry of Finance, under Notification No. 48/2017 dated 18th October 2017 or Notification No. 40 of 2017 dated 23rd October 2017 or Notification No. 41 of 2017 Integrated Tax (Rate), dated 23rd October 2017 or Notification No. 78 of 2017Customs dated 30th October 2017 or the Notification No. 79 of 2017customs dated 13th October 2017. 8.6. Thereafter, sub-rule (10) of Rule 96 of the CGST Rules was amended by the Notification No. 39/2018 dated 4th September 2018 w.e.f. 23rd October 2017 and substitute Rule10 as under: "6. In the said rules, with effect from the 23rd October, 2017, in rule 96, for sub-rule (10), the following sub-rule shall be substituted, namely : "(10) The persons claiming refund of integrated tax paid on exports of goods or services should not have - (a) received supplies on which the benefit of the Government of India, Ministry of Finance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be deemed to have been substituted with effect from the 23rd October, 2017, namely : "(10) The persons claiming refund of integrated tax paid on exports of goods or services should not have received supplies on which the supplier has availed the benefit of the Government of India, Ministry of Finance, notification No. 48/2017Central Tax, dated the 18th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, sub-section (i), vide number G.S.R. 1305(E), dated the 18th October, 2017 or notification No. 40/2017 - Central 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. 1320(E), dated the 23rd October, 2017, or notification No.41/2017Integrated 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 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 Octo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following goods and the explanation thereto states that, "Advance Authorization" means an authorization issued by the Director General of Foreign Trade under Chapter4 of the Foreign Trade Policy 201520 for import or domestic procurement of inputs on preimport basis for physical exports. Therefore, as the petitioner has availed the benefits of AA License as per Notification No. 40/2017 CT (Rate) dated 23rd October 2017 and has enjoyed the exemption of GST on the supply of the goods from the registered supplier for the purpose of export on fulfilling the conditions prescribed therein. It appears that, thereafter, by Notification No. 39/2018CT dated 4th September 2018 has substituted the sub-rule (10) of Rule 96 w.e.f. 23rd October 2017, however, by Notification No. 54/2018, the application of the substituted subrule (10) of Rule 96 is not made effective from 23rd October, 2017, but it was made applicable from the inception. Therefore, the petitioner who has availed the benefit of the Notification No. 39/2018 from 23rd October, 2017 to 4th September, 2018 would not be able to get the refund of the IGST paid or the input tax credit balance in the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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