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TMI Blog2023 (11) TMI 1113X X X X Extracts X X X X X X X X Extracts X X X X ..... eous in considering FOB values of twelve (12) shipping bills were signed and cleared by the Inspector, Custom, who is not the authorised officer in terms of Section 51 of the Customs the Act, 1951 as "Turnover of Zero-rated supplies" envisaged in Rule 89 (4) of the CGST Rules, 2017 for the purpose of arriving at the Refund amount. At the same time, appellate authority did not find any infirmity in Order being No. ZY1906210178152 dated 15.06.2021 in considering the FOB values of 03 shipping bills all dated 17.03.2021 for the purpose of arriving "Turnover of Zero-rated supplies" envisaged in Rule 89(4) of the CGST Rules, 2017. 2. The case of the petitioner, in short, is that the petitioner is a company incorporated under the Indian Companies Act, 1956 read with Indian Companies Act, 2013 being registered under Central Goods and Services Tax Act, 2017 and under the WBGST Act, 2017 had applied for refund of accumulated Input Tax Credit (ITC) to the tune of Rs. 29, 55,972/- relating to the period January 2021-March 2021 being an exporter on account of export of goods without payment of tax through common portal. The said accumulated ITC was finally sanctioned for refunds vide refund or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 2, 03, 82,775/- as claimed in form RFD-01. 4. According to the respondent No. 4, the adjudicating authority has been erroneously sanctioned in excess and asked to be recovered from the tax payer along with interest and penalty as applicable in terms of Sections 73 and 50 of the CGST Act, 2017 read with identical provisions of the WBGST Act, 2017. 5. Writ petitioner being the respondent in the said appeal submitted Cross-objection on the "Grounds of Appeals" which is reproduced below: i. The ground/basis of appeal filed by the Department is based on two procedural errors, if any, triggered by the Customs departmental officers. ii. The grounds raised by the Department are: a) 12 Shipping Bills have been cleared by the Inspector of Customs, Hatisar LCS, who is not authorized to function as Proper Officer. b) 03 Shipping Bills cleared by Superintendent of Customs without obtaining any approval from AC/DC of Customs having jurisdictions over Hatisar LCS. iii. The important contention is that the procedural errors are not cooked by the Respondent. iv. The Respondent has no control over the action of Customs Departmental officers and hence cannot be penalized over th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d this writ petition as there is no other alternative, since no tribunal constituted, seeking prayer inter-alia for quashing and/or setting aside the impugned order dated 12th December, 2022 passed by the Respondent No. 3 and further direct the respondents to forthwith give effect to the adjudication order dated 15th June, 2021 passed by the Respondent No. 1, allowing the refund of ITC together with interest till final payment. 8. Learned counsel appearing on behalf of the writ petitioner submitted that in view of the circular issued by the Government of India, Ministry of Finance, Department of Revenue, Central Board of Indirect Tax, Circular No. 125/44/2019-GST dated 18/11/2019, New Delhi, the petitioner filed refund application in Form GST RFD-01 on the common portal seeking refunds of ITC uploading all documents including invoices which is required for refunds of ITC on account of export without payment of tax and after filing the said refund application, the said application and documents uploaded by the petitioner as required by the circular was verified by the appropriate authorities, respondent No. 1 and finally came to conclusion that EDI Shipping bills verification recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any other purposes. 10. It is further submitted that nowhere in the Circular no. 125/44/2019- GST dated November 18, 2019 under the GST Regime specifies that the shipping bills produced by the reference claim under the relevant GST Act have to be in accordance with the Notification bearing no. 40/2012-Customs (NT) dated May 2, 2012 under the Customs Act, 1962. The Shipping Bills submitted under a common portal signed by the Inspector and triplicate copies have been countersigned by the Superintendent of Customs are sufficient to prove clearance made from the side of Customs for Export. The CGST Regime and Customs Regime are come under the same Governmental functionaries and under the Central Board of Indirect Tax and both limbs are under Union of India. Accordingly, fault of their officers shall not be prejudiced or suffer financial loss to the writ petitioner. Furthermore, the petitioner cannot compel the officers whether who would sign shipping bills at the time of clearance. Therefore, impugned order passed by the Appellate authority under challenged is required to be set-aside and further direction may be passed directing the respondent to give effect of refund Order being No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se formalities are totally comes under the customs department. Question raised by the GST officials are only internal irregularities of the Customs Department and those irregularities can be verified easily by seeking report from the office of customs but no such exercise done by the officials of the GST and arrived at a conclusion that the Writ petitioner is not entitled to refund though there is no dispute that the writ petitioner had not exported the goods after getting clearance from the custom Department. However, it is raised a question about the irregularities committed by the Customs Department, which is not under domain of writ petitioner. Signing by the officials of Custom is a mere irregularity from the side of customs department but for such irregularity the writ petition shall not be penalised when he has produced documents through online portal as well as physical mode for clearance of goods exported under Section 51 of the Customs Act, 1962. Which had been received by the petitioner at the time of export and the goods have been actually exported out of India to its destination successfully. 13. The observation has been made that there is a mandatory provision to sub ..... X X X X Extracts X X X X X X X X Extracts X X X X
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