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TMI Blog2021 (11) TMI 1013X X X X Extracts X X X X X X X X Extracts X X X X ..... hose impugned notices. The Petitioner in the said writ petition had also challenged the show cause notice (SCN) dated 21st July 2021 which was pertaining to the period April 2019 to March. 2020. A development that has taken place subsequent to the above order passed by this Court is that the GST Council at its 45th Meeting on 17th September 2021 decided inter alia to issue a clarification in respect of goods for which the export duty is in fact not paid. It was clarified that only those goods which are actually subjected to export duty i.e., on which some export duty has to be paid at the time of export, will be covered under the restriction imposed under section 54 (3) of the CGST Act, 2017 from availment of refund of accumulated ITC. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not survive and is hereby set aside - Petition allowed. - W.P.(C) No.34402 of 2021 - - - Dated:- 25-11-2021 - Dr. S. Muralidhar Chief Justice Versus A.K. Mohapatra Judge For the Petitioner : Mr. P. Agrawal, Advocate For the Opposite Parties : Mr. Sunil Mishra, Addl Standing Counsel for SGST, Mr. R. Chimanka, Sr. Standing Counsel for CGST ORDER 01. 1. This is the second writ petition by the same Petitioner i.e. M/s B.S. Minerals on the issue of denial of refund of unutilized input tax credit (ITC) against export of iron ore fines for which the export duty is nil as a result of an exemption notification. 2. In earlier writ petition of the Petitioner i.e. W.P.(C) No.26685 of 2021, the challenge was to two instruc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TC. As a result of the above decision of the GST Council, a fresh circular dated 20th September 2021 has been issued by the Central Board of Indirect Taxes and Customs (CBITC), GST Policy Wing, Ministry of Finance, Government of India in which one of the questions addressed is, at serial No.3, whether the first proviso to section 54(3) of the CGST/SGST Act, prohibiting refund of unutilized ITC is applicable in case of exports of goods which are having NIL rate of export duty? The clarification issued reads as under: 1. The term subjected to export duty used in first proviso to section 54(3) of the CGST Act, 2017 means where the goods are actually leviable to export duty and suffering export duty at the time of export. Therefore, go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucing a copy of the clarification dated 29th September 2021 whereby the earlier clarification issued on 25th June 2021 stands withdrawn, states that if a direction is given for time bound disposal of the refund application, it will be complied with. 8. It is seen that since the instruction dated 25th June 2021 stands withdrawn, clearly the earlier instruction dated 8th June 2021 which is in the same vein also does not survive. Therefore, one of the prayers of the previous petition as well as the present petition challenging the aforementioned circulars does not survive. 9. Since the impugned SCN has been issued only as result of the above circulars, it also does not survive and is accordingly set aside. 10. A direction is now issue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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