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TMI Blog2022 (4) TMI 819X X X X Extracts X X X X X X X X Extracts X X X X ..... GST mentioned hereinabove from the date of shipping bill up till the date on which the amount of refund is paid to the petitioner herein, as the same is arbitrarily and illegally withheld by the respondent authorities. E. Your Lordships may be pleased to grant an ex parte, ad interim order in favour of the petitioner herein in terms of prayer clause 'C' and 'D' hereinabove. F. Since the petitioner are constrained to approach Your Lordships by way of this petition only because of illegal act of respondent authorities, Your Lordships may be pleased to direct the respondent authorities to pay a cost of this litigation to the petitioner herein. G. Your Lordships may be pleased to grant such other and further relief/(s) that may be deemed fit and proper in the interest of justice in favour of the petitioner." Before we delve into the facts of the case, it would be appropriate to note that subsequently the writ applicant has preferred the draft amendment, whereby the writ applicant has prayed for the reliefs, which are reproduced hereinbelow: "C1. Your Lordships may be pleased to issue a writ of certiorari or mandamus or any other appropriate writ, quashing and setting aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Custom (NT) dated 26.07.2017. Thus, the higher rate of 1% of value and attached invoices getting list of various declaration were inadvertently furnished except for one shipping bills. Sr. No. GST Invoice No. & Date Export Invoice No & Date Shipping Bill No. & Date Export General Manifest No. & Date Bill of Lading No & Date 01. SWI/EXP/70/17-18 26/06/2017 SWI/EXP/70/17-18 26/06/2017 709729 9 01/07/17 129979 13/07/17 SMLMPAV700062700 05/07/2017 02. SWI/EXP/71/17-18 01/07/2017 SWI/EXP/71/17-18 01/07/2017 713085 7 03/07/1 7 130023 13/07/1 7 MOLU13903532963 09/07/2017 03. SWI/EXP/76/17-18 01/07/2017 SWI/EXP/76/17-18 01/07/2017 716498 6 05/07/1 7 130023 13/07/1 7 MOLU13903540980 09/07/2017 04. SWI/EXP/77/17-18 03/07/2017 SWI/EXP/77/17-18 03/07/2017 716498 9 05/07/1 7 130023 13/07/1 7 MOLU13903539572 09/07/2017 05. SWI/EXP/77A/17-18 03/07/2017 SWI/EXP/77A/17- 18 03/07/2017 716498 8 05/07/1 7 130023 13/07/1 7 MOLU13903539572 09/07/2017 06. SWI/EXP/62/17-18 04/07/2017 SWI/EXP/62/17-18 04/07/2017 714933 1 04/07/1 7 130786 19/07/1 7 769850302 15/07/2017 07. SWI/EXP/74/17-18 05/07/2017 SWI/EXP/74/17-18 05/07/2017 717421 4 05/07/1 7 130018 19/07/1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ems to have made representation to the Deputy / Assistant Commissioner, Customs House, Pipavav, to sanction of aforesaid shipping bills and claimed refund of IGST of an amount of Rs. 31,08,988/- and Rs. 5,92,338/- (total Rs. 37,01,326/-) for the month of July, 2017 and August, 2017. The writ applicant had also submitted supporting documents which includes copies of 16 shipping bills and amendment certificate dated 01.09.2017 as well as copy of undertaking, copies of challan issued by the Customs Authority and calculation sheet for differential drawback return. 2.9 Attention of the Deputy / Assistant Commissioner, Customs House, Pipavav was also drawn to the fact that the writ applicant firm had surrendered differential excess of drawback of the amount of Rs. 60,05,893,31/- with interest amount of Rs. 31,097.21 and the same has been duly acknowledged by issuing challans during period from 08.09.2017 to 20.12.2017. 2.10 It appears that inspite of the aforesaid facts being brought to the notice of the Office of Deputy / Assistant Commissioner of Customs, Pipavav, the Deputy Commissioner, Customs House, Pipavav, vide letter dated 19.06.2019 rejected the claim of the refund of IGST ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2018 (wrongly referred as dated 09.10.2019) as well as the reference was made to the EDI systems not permitting the respondent Authorities to process the amending shipping bills manually once the LEO is granted and thereby refused to consider the claim of the writ applicant for IGST refund. In such circumstances, the writ applicant has approached this Court with the relief so sought for. 3. We have heard Mr. D.K. Trivedi, the learned counsel appearing for the writ applicant Firm as well as Mr. Nikunt Raval, the learned senior standing counsel for the respondent Authorities. Only limited controversy involved in the present writ application is regards non-refund of the IGST by the respondent Authorities in light of Circular bearing No.37/2018 dated 09.10.2018 and the EDI System. The aforesaid controversy is no more res integra in view of the settled law as decided by this Court in the case of Amit Cotton Industries Vs. Principal Commissioner of Customs reported in 2019 (29) G.S.T.L. 200 (Guj.). 4. We have perused the affidavit in reply filed by the Deputy Commissioner, Custom House, Pipavav, respondent No.3, wherein stance taken by the respondent Authorities is mainly on the grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merely instructions for understanding of statutory provisions and are not binding on the Court. The Circulars which are contrary to the statutory provisions has no existence in the eye of law. The contention of this Court was also drawn to the decision in the case of J.K.Lakshmi Cement Limited v. Commercial Tax Officer, Pali, reported in 2018(14) G.S.T.L. 497 (S.C.), to contend that power to issue circulars is for just, proper and efficient management of the work and in public interest. Such power for proper administration of fiscal law is utilized for avoiding undue hardships to the assessee. Such circulars may be binding on the authorities administration administering the enactment but at the same time cannot alter the provisions of enactment to the Department of assessee. Learned advocate had therefore, submitted to quash and set aside the Circular bearing No.37/2018- Custom dated 09.10.2018. So far as to stance of respondent Department of withholding of IGST refund by referring Circular bearing No.37/2018-Custom dated 09.10.2018 is concerned, is completely erroneous. This Court has considered the aforesaid circular in the similar set of facts in the case of Amit Cotton (Supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund under either of the following options, namely:-- (a) he may supply goods or services or both under bond or Letter of Undertaking, subject to such conditions, safeguards and procedure as may be prescribed, without payment of integrated tax and claim refund of unutilised input tax credit; or (b) he may supply goods or services or both, subject to such conditions, safeguards and procedure as may be prescribed, on payment of integrated tax and claim refund of such tax paid on goods or services or both supplied, in accordance with the provisions of section 54 of the Central Goods and Services Tax Act or the rules made thereunder." According to the aforesaid provisions, a registered person making "Zero Rated Supplies" has been provided an option to claim refund of IGST in accordance with Section 16(3)(b) the registered person, thus becomes eligible to claim refund either on supply of the goods or service or both on payment of integrated tax and supply in accordance with law and subject to Section 54 of the CGST Act. Section 54 of the CGST Act reads thus: "54. Refund of tax.-- (1) Any person claiming refund of any tax and interest, if any, paid on such tax or any other a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aimed was collected from, or paid by, him and the incidence of such tax and interest had not been passed on to any other person: Provided that where the amount claimed as refund is less than two lakh rupees, it shall not be necessary for the applicant to furnish any documentary and other evidences but he may file a declaration, based on the documentary or other evidences available with him, certifying that the incidence of such tax and interest had not been passed on to any other person. (5) If, on receipt of any such application, the proper officer is satisfied that the whole or part of the amount claimed as refund is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund referred to in section 57. (6) Notwithstanding anything contained in sub-section (5), the proper officer may, in the case of any claim for refund on account of zero-rated supply of goods or services or both made by registered persons, other than such category of registered persons as may be notified by the Government on the recommendations of the Council, refund on a provisional basis, ninety per cent. of the total amount so claimed, excluding the amount o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of this sub-section, the expression "specified date" shall mean the last date for filing an appeal under this Act. (11) Where an order giving rise to a refund is the subject matter of an appeal or further proceedings or where any other proceedings under this Act is pending and the Commissioner is of the opinion that grant of such refund is likely to adversely affect the revenue in the said appeal or other proceedings on account of malfeasance or fraud committed, he may, after giving the taxable person an opportunity of being heard, withhold the refund till such time as he may determine. (12) Where a refund is withheld under sub-section (11), the taxable person shall, notwithstanding anything contained in section 56, be entitled to interest at such rate not exceeding six per cent. as may be notified on the recommendations of the Council, if as a result of the appeal or further proceedings he becomes entitled to refund. (13) Notwithstanding anything to the contrary contained in this section, the amount of advance tax deposited by a casual taxable person or a non-resident taxable person under sub-section (2) of section 27, shall not be refunded unless such person has, in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case where tax is paid provisionally under this Act or the rules made thereunder, the date of adjustment of tax after the final assessment thereof; (g) in the case of a person, other than the supplier, the date of receipt of goods or services or both by such person; and (h) in any other case, the date of payment of tax." 7. So far as Rule 96 of the CGST Rule, 2017 are concerned, it provides that the shipping bills filed by an exporter of goods shall be deemed to be an application for refund of integrated tax paid on the goods export outside India and such application shall be deemed to have been filed only when the person in charge of conveyance carrying exported goods duly filed and exported manifestly or an export report covering the date and proof and shipping bill and date of export and the application must have furnished the valid return the in the Form GSTR 1 and GSTR-3B. As noted earlier, undisputedly, the writ applicant has placed on record the aforesaid details as well as has also furnished the valid return in Form GSTR-3B for the relevant months of July, 2017 and August, 2017. Thus, in view of the aforesaid relevant materials, we find that the writ applicant i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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