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TMI Blog2021 (4) TMI 963X X X X Extracts X X X X X X X X Extracts X X X X ..... 017 has opted to stick with the claim of duty draw back seeing as the amount of drawback is higher than the ITC for the months of August and September, 2017 - On a plain reading of Section 54 (3) it is found that the claim of refund to be in order. The orders of the appellate authority are set aside and the authority is directed to refund the sanctioned amounts within a period of six (6) weeks from today. In doing so, the contents of paragraph 2.5 of the Circular will not stand in the way since a circular cannot stand in the way of a benefit offered under a statutory scheme. Paragraph 2.5 of the circular, insofar as it is contrary to the statutory provisions of Section 54(3) is bad in law. Petition allowed. - W.P. Nos.10969, 10972 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Goods and Service Tax Act, 2017 (in short 'Act'). A claim for draw back in terms of the provisions of the Customs Act, 1962 had been made. The claim was sanctioned and the petitioner has received the draw back. 4. Despite the transactions being categorised as zero rated supplies, the petitioner remitted IGST, Central Goods and Service Tax (CGST) and State Goods and Service Tax (SGST) on the purchase of tea and such tax was credited in its electronic credit ledger. The petitioner thereafter filed an application for refund of the amounts taking advantage of Section 54 of the Act. 5. 90% of the claim was sanctioned on a provisional basis, but was followed by a show cause notice dated 02.04.2018, since R1, the Assessing Authority, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in Real Prince Spintex Pvt. Ltd. V. Union of India (2020 (35) GSTL 369) and a learned single Judge of this Court in Precot Meridian Ltd. V. Commissioner of Customs, Tuticorin (2020 (34) GSTL 34) have held otherwise. 10. The provisions of Section 54 of the Act read as follows: 54. Refund of tax. (1) Any person claiming refund of any tax and interest, if any, paid on such tax or any other amount paid by him, may make an application before the expiry of two years from the relevant date in such form and manner as may be prescribed: Provided that a registered person, claiming refund of any balance in the electronic cash ledger in accordance with the provisions of sub-section (6) of section 49, may claim such refund in the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wed, if the supplier of goods or services or both avails of drawback in respect of central tax or claims refund of the integrated tax paid on such supplies. ......... 11. It is clear from a reading of Section 54(3) that the petitioner is entitled to one or the other of two benefits, i) duty draw back or ii) Input Tax Credit. Thus, an option has been extended to an assessee engaged in zero rated sale to either claim the benefit of duty drawback or the benefit of refund of ITC. That is why, in the present case, the petitioner, for the month of July, 2017 has opted to stick with the claim of duty draw back seeing as the amount of drawback is higher than the ITC for the months of August and September, 2017. 12. On a plain reading of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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