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TMI Blog2023 (9) TMI 905X X X X Extracts X X X X X X X X Extracts X X X X ..... items stated therein. Circular No. 56/2018 dated 24.08.2018 clarified that Notification No.20/2018 would be effective from first day of August 2018 to keep the accounting simple and refund of ITC for the month of July i.e. on purchases made on or before 31.07.2018 would lapse. Hence, as per the working of Rule 89(5) of the CGST Rules, 2017 the petitioners were entitled to refund of Rs.22,78,798/- as per Notification No.20/2018 - the petitioners also reversed ITC of Rs.10,12,188/- with regard to wrongly claimed credit on capital goods in the month of August, 2018 in Form GSTR-3B. Accordingly, the refund claim of the petitioners was automatically reduced by Rs. 8,06,852/-. Accordingly, the petitioners were allowed to file refund application for Rs.14,71,946/- by GST Portal on 21.06.2019. The reasons given by the respondent authorities that refund application filed is not as per the calculation made in Rule 89(5) of the CGST Rules is also not correct since as per the calculation made under Rule 89(5) which provides for maximum refund amount, the petitioners are entitled to refund of Rs.22,78,798/- on the total turnover of inverted duty tax structure which is not in dispute and accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or respondent nos.2 and 3. 2.Learned advocate Mr. H.J. Trivedi has tendered a draft amendment. The same is allowed in terms of the draft. To be carried out forthwith. 3.By the draft amendment, learned advocate has sought to replace Annexure-G with order dated 12.09.2019 whereby the refund application of the petitioners is rejected. 4.Rule returnable forthwith. Learned advocate Mr. Harsheel D. Shukla waives service of notice of rule on behalf of respondent no.1 and learned advocate Mr. Nikunt Raval waives service of notice of rule on behalf of respondent nos.2 and 3. 5.By this petition under Article 226 of the Constitution of India, the petitioners have challenged order dated 29.09.2020 issued on 21.10.2020 passed by the Joint Commissioner, (Appeals), Ahmedabad confirming the order dated 12.09.2019 passed by the Deputy Commissioner, Central GST, rejecting the refund application dated 08.08.2019 filed by the petitioner no.1 in Form GST RFD-01A file bearing ARN No. AA240819017945S. 6.The petitioner no.1-Company is registered as manufacturing services in textile division under the Central Goods and Service Tax Act, 2017 (For short the GST Act ) having Registration No. 24AAACP8774BIZI. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner no.1- Company had reversed the credit of Services (not goods) hence does not affect the refund amount as the petitioner no.1- Company have claimed refund for goods only Total 9,94,810/- 8,689/- 8,689/- 10,12,188/- 12. It is the case of the petitioners that as per the Rules 42 and 43 of the CGST Rules 2017, Form DRC-03 can be used for reversal of ITC. However, due to non-availability of DRC- 03 on GST Portal, the petitioner Company had reversed the ITC in Form GSTR-3B for the month of August 2018. The petitioner Company also claimed credit in respect of supplies of goods of Rs. 56,01,017/- under the inverted duty tax structure and Rs. 1,14,689/- pertaining to supplies of services, for which the petitioner Company was not entitled to credit under the inverted duty tax structure. The summary of ITC as per GSTR-3B for the month of August 2018 is as under: Particulars Amount ITC available for the month of Aug 2018 57,68,728/- Less: ITC reversed for FY 2017-18 10,12,188/- Net ITC available 47,56,539/- Less: Liability for the month of Aug 2018 (32,02,738/-) Net ITC available for refund as per portal configuration 15,53,801/- 13. The petitioners have become eligible to claim refun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 21.06.2019 but however while processing refund application filed on 08.08.2019 under the head Any Other head (Please Specify) , the respondent authority issued a show cause notice dated 03.09.2019 proposing to disallow the refund of Rs. 8,06,852/- the on following grounds: (i) As per circular no. 94/13/2019-GST dated 28.03.2019, there is no provision that second refund application can be filled for the same particular month Le. August 2018 under which appellant filed refund claim under the category Any Other Specify in inverted rate of structure; (ii) For the refund application filled, calculation should be as per Rule 89(5): (iii) The department has never asked to reverse the ITC on capital goods. The appellant had reversed the same on his own. 18. It is the case of the petitioner company that respondent no.3 Deputy Commissioner disregarded all the submissions made by the petitioner Company and rejected the refund application vide impugned order dated 12.09.2019 on the ground that it is impermissible under the law to split the refund claim for a particular month in two parts and further on the ground that refund of reversed ITC on capital goods cannot be claimed as refund. 19. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and therefore, the refund for reversal of ITC on capital goods cannot now be claimed as refund again due to inverted duty tax structure as per section 54 of the GST Act. 23. Having heard learned advocates for the respective parties, the facts are not in dispute as narrated hereinabove. Notification No.5/2017 dated 28.06.2017 provided that no refund of unutilised tax credit shall be allowed where the credit has accumulated on account of rate of tax on inputs being higher than the rate of tax on the output supplies of such goods which included woven fabrics manufactured by the petitioner company. However, by Notification No.20/2018 dated 26.07.2018 it was provided that Notification No.5/2017 would not be applicable to the items stated therein as under: In exercise of the powers conferred by clause (ii) of the proviso to sub-section (3) of section 54 of the Central Goods and Services Tax Act, 2017 (12 of 2017), the Central Government, on the recommendations of the Council, hereby makes the following further amendments in the notification of the Government of India in the Ministry of Finance(Department of Revenue), No.5/2017-Central Tax (Rate), dated the 28th June, 2017, published in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich they are so eligible. This is because of a validation check on the common portal which prevents the value of input tax credit in Statement 1A of FORM GST RFD-01A from being higher than the amount of ITC availed in FORM GSTR-3B of the relevant period minus the value of ITC reversed in the same period. This results in registered persons being unable to claim the full amount of refund of accumulated ITC on account of inverted tax structure to which they might be otherwise eligible. What is the solution to this problem? a) As a one-time measure to resolve this issue, refund of accumulated ITC on account of inverted tax structure, for the period(s) in which there is reversal of the ITC required to be lapsed in terms of the said notification, is to be claimed under the category any other instead of under the category refund of unutilized ITC on account of accumulation due to inverted tax structure in FORM GST RFD-01A. It is emphasized that this application for refund should relate to the same tax period in which such reversal has been made. b) The application shall be accompanied by all statements, declarations, undertakings and other documents which statutorily are required to be su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad therefore, no other option but to file refund application in view of Circular No.94/2019 dated 28.03.2019 under the head any other . 30. The reasons given by the respondent authorities that refund application filed is not as per the calculation made in Rule 89(5) of the CGST Rules is also not correct since as per the calculation made under Rule 89(5) which provides for maximum refund amount, the petitioners are entitled to refund of Rs.22,78,798/- on the total turnover of inverted duty tax structure which is not in dispute and accordingly, the petitioners were entitled to refund of Rs. 8,06,852/- which the petitioners could not claim in view of the fact that GST Portal did not permit the petitioners to file refund application in view of the reversal of the wrongly claimed credit on capital goods. 31. The respondent authorities have therefore, adopted a pedantic approach by rejecting the refund application filed by the petitioners for balance amount of refund of Rs. 8,06,852/-. 32. It is also pertinent to note that the respondent authorities cannot dispute the claim of the petitioner s eligibility of refund of Rs.22,78,798/- for the month of August 2018 calculated as per Notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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