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TMI Blog2023 (9) TMI 1238X X X X Extracts X X X X X X X X Extracts X X X X ..... etrospectively. Even otherwise, the circular proceeds on a footing of claim of higher duty drawback and not where the rate of drawback is same and further more the circular also dose not deal with the rectification of mistake if suffix (A) is mentioned instead of suffix (B), while mentioning the HSN Code, which the facts in the instant case. This Court in an identical facts/situation in the case of SUNLIGHT CABLE INDUSTRIES VERSUS THE COMMISSIONER OF CUSTOMS NS II AND 2 ORS. [ 2023 (7) TMI 160 - BOMBAY HIGH COURT] , faced with a similar situation allowed the claim of refund by observing the Petitioner is entitled to a refund of the IGST paid on the exports in question, as it is certain that this is not a case where the Petitioner is availing any double benefit that is of the IGST refund and a higher duty drawback. The Respondents are directed to refund of Rs. 17,04,127/- to the Petitioner the IGST paid in respect of the zero rated supply under shipping bills in question alongwith interest as per the IGST Act - Petition allowed. - G.S. KULKARNI, JITENDRA JAIN, J.J. For the Petitioner : Mr. Ishaan V. Patkar a/w Mr. Durgesh G. Desai i/by Malvi Ranchoddas Co. For the Respondent No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r has opted for higher duty drawback by mentioning Tariff Code 3907-A, the Petitioner has given up its right to claim the refund of tax paid under IGST Act. The Petitioner was informed about the said stand of the revenue by relying upon Circular No. 37 of 2018 dated 9th October, 2018. 9. On 6th May, 2019 the Petitioner's Advocates addressed a detailed letter to Director General of Foreign Trade as also to the Central Board of Indirect Taxes and Customs narrating the aforesaid facts and requesting to give permission to the Petitioner to rectify and amend the shipping bill to substitute HSN Code 3907-A by 3907-B. However, there was no response from any of the authorities. 10. It is on the backdrop of the aforesaid events that the present petition is filed seeking refund of Rs. 17,04,127/- alongwith the interest. 11. Submission of the Petitioner : The Petitioner submitted that the duty drawback rate under HSN Code 3907-A and 3907-B is same and therefore, it is not a case where the Petitioner has claimed higher rate of duty drawback. The Petitioner also stated that there was an error in mentioning HSN Code 3907-A instead of correct HSN Code 3907-B, which error has been admitted by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 25th July, 2017 and 5th September, 2017, which is much before the date of Circular. It is a settled position that the circular cannot be made applicable retrospectively. Even otherwise, the circular proceeds on a footing of claim of higher duty drawback and not where the rate of drawback is same and further more the circular also dose not deal with the rectification of mistake if suffix (A) is mentioned instead of suffix (B), while mentioning the HSN Code, which the facts in the instant case. 16. This Court in an identical facts/situation in the case of Sunlight Cable Industries (supra), faced with a similar situation allowed the claim of refund by observing as under : 9. We have heard learned Counsel for the parties. We have also perused the record. Section 54 of the CGST Act provides for refund of tax, which would entitle the Assessee to claim any refund of tax and interest or any other amount paid by him by making an application before the expiry of two years from the relevant date in such form and manner as may be prescribed. Explanation below Section 54 provides for refund, which includes refund of tax paid on zero rated supplies of goods or services or both or on inputs se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cus. (N.T.) dated 31/10/2016, if the rate indicated in the columns (4) i.e. higher duty drawback and (6) i.e. lower duty drawback are the same, then it shall necessarily imply that the same pertains only to the Customs component and is available irrespective of whether the exporter has availed of the CENVET facility or not. 10. The petitioner had exported Rope Making Machine HSN Code 84794000 which attracts the same rate under both the columns (4) (6) respectively i.e. 2 per cent. Thus it is evident that the petitioner has claimed drawback of the customs component only for their exports and there arises no question of denying the refund of IGST. The rationale for not allowing the refund of IGST for those exporters, who claim higher duty drawback is that the higher duty drawback reflects the elements of Customs, Central Excise and Service Tax taken together and since higher duty drawback is already being availed than granting the IGST refund would amount to double benefit as the Central Excise and Service Tax has been subsumed in the GST. In the case of the writ-applicant, the drawback rates being the same, it represents only the Customs elements, which did not get subsumed in the G ..... X X X X Extracts X X X X X X X X Extracts X X X X
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