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TMI Blog2023 (11) TMI 1016X X X X Extracts X X X X X X X X Extracts X X X X ..... the rate of 5% and the same was admitted by the petitioner as well as the first respondent and it was also stated in the impugned order by the second respondent. In terms of Section 54(3)(ii) of the GST Act, if the rate of tax on input is higher than the rate of tax on output, certainly, the person can claim the refund - Accordingly, in the present case, the duty paid on input is 18% though it is chargeable at 5%. Therefore, this Court is of the considered view that the petitioner is entitled for refund in terms of the provision of the Section 54(3)(ii) of the GST Act and the said view was also held by the second respondent in the impugned order. Hence, this Court does not find any error or illegality in the order passed by the second respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, the said impugned order is liable to be set aside. 2.2 The another stand taken by the petitioner is that since the supplier of the first respondent had paid IGST for the input products at the rate of 18%, the first respondent also should have paid IGST for the final products at the rate of 18%. However, this aspect was also not considered by the second respondent while passing the impugned order and hence, the same is liable to be set aside. 3. On the other hand, the learned counsel appearing for the first respondent would submit that in the present case, the vendor of the first respondent had paid 18% IGST and there is no dispute on that aspect. The contention of the first respondent was that since the assessment year was already ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 2007 (218) E.L.T. 488 (S.C.) rendered by Hon'ble Apex Court and (ii) M/s.Modular Auto Limited vs. Commissioner of Central Excise, Chennai reported in 2018 (8) TMI 1691 rendered by the Hon'ble Division Bench of this Court. 5. I have given due consideration to the submissions made by the learned counsel for the petitioner as well as the respondent and also perused the materials available on record. 6. The issue that has to be decided in these petitions is whether the first respondent is entitled for refund or not. 7. In the present case, there is no dispute on the fact that the vendor of the first respondent had paid 18% duty on the goods supplied to the first respondent. It is also not in dispute that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it has been wrongly made at the rate of 18% by the vendor of the first respondent. Therefore, the first respondent cannot invoke Section 54(3) of GST Act. Further, it appears that a notice was issued by the petitioner stating that while selling the final product, the first respondent should have collected the IGST at the rate of 18% at par with the rate of tax paid by the supplier for the input product i.e., at the rate of 18%. 11. The fact remains that the input is chargeable to duty at the rate of 5% and the same was admitted by the petitioner as well as the first respondent and it was also stated in the impugned order by the second respondent. In terms of Section 54(3)(ii) of the GST Act, if the rate of tax on input is higher than the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty imposed by the Authority in original is concerned, we are of the view that a case for imposition of penalty is not made out and accordingly, the same is set aside and deleted. Rest of the order of the Tribunal restoring the order of the Authority-in-original is confirmed. 14. Further, in the judgement of the Hon'ble Division Bench of this Court in M/s.Modular Auto Limited vs. Commissioner of Central Excise, Chennai (mentioned supra), it has been held as follows: 16. In the instant cases, it is not in dispute that whatever the portion of Service Tax component which was collected from the assessees by BIL was only the amount on which the CENVAT credit has been claimed by the assessees. Therefore, unless and until the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no jurisdiction. 15. The law laid down by the Hon'ble Apex Court and the Hon'ble Division Bench of this Court in the above said cases would apply to the present case. 16. Considering the above discussions and aforesaid judgements, I am not inclined to entertain these petitions since I do not find any merits in these petitions. 17. Therefore, this Court is of the view that the first respondent is entitled for refund as per the order passed by the second respondent and the first respondent is also entitled for interest at the rate of 9% per annum of the refund amount for the delay period in terms of Section 56 of the GST Act. 18. Accordingly, these writ petitions are dismissed. While dismissing the writ petitions, the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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