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TMI Blog2022 (4) TMI 753X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 transac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and final disposal of this petition, direct the Respondent authorities, more particularly the Respondent No.2, to re-credit/ restore the ITC of ₹ 1,39,49,810/- in the electronic credit ledger along with interest; (c) any other and further relief deemed just and proper be granted in the interest of justice; (d) to provide for the cost of this petition. 2. The facts giving rise to the present writ-application may be summarised as under : 2(1) The writ-applicant is a Company registered under the provisions of the Companies Act, 1956 (for short, the 'Act 1956'). The writ-applicant is engaged in the business of manufacturing various types of toys. The writ-applicant is duly registered under the provisions of the Goods and Services Tax Act (for short, the 'GST Act') and it has been issued 'advance license', whereby the writ-applicant is permitted duty free import of its raw material, i.e. import without payment of any import duty. Thus, the writ- applicant is importing its raw material by availing the benefit of the Notification No.79/2017-Customs dated 13.10.17 issued by the Government of India, Ministry of Finance, New Delhi. The raw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which seeks to prevent an exporter availing the benefit under the specified notifications from exporting goods under the payment of the integrated tax. This is basically to ensure that an exporter, who has availed the benefit under the specified notifications (which includes the Notification No.79/2017-Customs dated 13.10.17), does not utilize the ITC availed on other domestic supplies for making the payment of the IGST on the export of the goods. (c) Since the writ-applicant is availing the benefit under the Notification No.79/2017-Customs dated 13.10.17, the restriction imposed by sub-rule (10) of rule 96 of the CGST Rules is applicable to the writ-applicant. (d) Owing to lack of knowledge of the Notification No.53/2018 - C.T. dated 09.10.2018 under which sub-rule (9) of rule 10 has been inserted, the writ- applicant exported its finished goods produced from raw-material imported under the advance license on payment of the IGST by utilizing the accumulated ITC; (e) The writ-applicant realized that it cannot utilize the ITC for payment of the IGST on export of the goods produced from raw-material imported under the advance license in view of sub-rule 10 of rule 96 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; (d) The action of the respondent in not recrediting/restoring the ITC in question is also not at all in consonance with Article 265 as well as Article 300-A of the Constitution of India, 1950; SUBMISSIONS ON BEHALF OF THE RESPONDENT : 4. On the other hand, Mr.Utkarsh Sharma, the learned AGP vehemently opposed the present writ-application. Mr.Sharma submitted that the writ-application is not maintainable as the writ-applicant is not at all entitled to claim the refund. He relied upon paragraph 18 of the affidavit-in-reply to buttress his point that once an amount in question is paid in the Form-DRC-03 voluntarily, the same cannot be refunded. 5. In such circumstances referred to above, Mr.Sharma, prays that there being no merit in the present writ-application, the same may be rejected. ANALYSIS : 6. 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 Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 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. Here, the simple issue is one of restoration of the ITC, which was erroneously refunded and subsequently recovered. If the authorities have accepted that there was an error and resultantly, accepted repayment of the erroneous refund, as a corollary, the credit of the ITC must be restored. 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. 10. In such circumstances, We direct the respondent authorities to re-credit/restore the ITC to the tune of ₹ 1,39,49,810/- in the electronic tax ledger of the writ- applicant. 11. As regards the submissions of Mr.Sharma that the writ- applicant is not entitled to any refund, we make it clear that we have not gone into the merits or the eligibility of the claim o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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