9911796707
TMI Blog2022 (4) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellate authority being the Joint Commissioner, State Tax Siliguri dated 10.12.2021 rejecting the refund claim of the petitioners. The claim pertains to the period 01.10.2018 to 31.12.2018. The said refund was sought under Section 54(3) of the Central Goods and Services Tax Act, 2017. The petitioners are engaged in the business of purchasing LPG gas in bulk through tanker and thereafter bottling the same in bottles / cylinders of 4kgs, 6kgs, 14kgs, 17kgs and 21kgs and sell the same to commercial customers on GST applicable at the rate of 18% and to the domestic customers at the rate of 5%. Prior to 25.01.2018 the input and output tax on liquefied petroleum gases to commercial as well as domestic consumers was 18%. By a notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upplied to the consumers in the same manner and quantity, but bulk gas is refilled in small containers and thereafter sold out to both commercial as well as domestic consumers. Hence, it cannot be said that the input and output supplies remain the same. In support of their stand the petitioners rely upon an advance ruling by the Gujarat Authority for Advance Ruling in Advance Ruling No. GUJ/GAAR/R/2020/15 dated 19.05.2020 in re- M/s. Navbharat LPG Bottling Company wherein the Authority was of the opinion that the applicant would be liable to pay five percent tax on the LPG sold to domestic customers with effect from 25.01.2018 and would get the benefit of the input tax credit. The petitioners rely upon the judgment and order passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e heard the submissions made on behalf of both the parties. The petitioners claim refund in accordance with Section 54(3) of the CGST Act, 2017 on the ground that credit has accumulated on account of rate of tax on inputs being higher than the rate of tax on output supplies. Admittedly, the rate of tax on the input supply (LPG in bulk) is 18% and the rate of tax on output supply (LPG in small Containers for domestic consumers) is 5%. The claim of the petitioners for refund stood rejected on the ground that the input and output supplies are the same. The said restriction on claiming refund has been imposed by the circular dated 31.03.2020. The said circular was issued in exercise of the powers conferred under Section 168(1) of the CGST Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to why the benefit of accumulated input tax credit will not be passed on to the petitioners. Section 168(1) strives to lay down that for the purpose of uniformity in the implementation of the Act, orders, instructions or directions may be issued. 'Uniformity in implementation' does not mean curbing benefits available in the Act by introducing new provisions. A circular cannot supplant or implant any provision which is not available in the Act. The circular dated 31.03.2020 is imposing a restriction to release certain benefits which are provided under the Act. In M/s. Jindal Stainless Ltd. (supra) the Hon'ble Court took into consideration various other judgments to arrive at a decision. The Court took note of the judgment in the matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the input tax is more than the output tax. The said benefit is applicable to all similar cases. The respondent authority ought not to reject the claim of the petitioners relying on the circular as the prayer made by the petitioners is permissible under the Act. In view of the discussions made hereinabove, the impugned orders passed by the adjudicating authority and the appellate authority are liable to be set aside and quashed. The same are accordingly set aside and quashed. In the facts and circumstances of the instant case, it is held that the petitioners will be entitled to the refund as claimed. The writ petition stands disposed of. Urgent photostat certified copy of this order, if applied for, be supplied to the parties expeditio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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