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TMI Blog2024 (9) TMI 1459X X X X Extracts X X X X X X X X Extracts X X X X ..... tio laid down by the Division Bench of this Court in the case of Britannia Industries Limited still holds the field and thereby, the same ought to have been followed by the Appellate Authority while deciding the appeal of the Revenue. The Appellate Authority could not have ignored the dictum of law merely on the ground that the said decision is pending adjudication before the higher forum more particularly without any stay. The facts of the present case as well as the facts in the case of Britannia Industries Limited are more or less identical in nature and thereby, a different view than that of already taken by the Coordinate Bench of this Court in the case of Britannia Industries Limited cannot be takien. The present petition is allowed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ending hearing and final disposal of the present petition, Your Lordships may be pleased to restrain the respondents, their servants and agents from implementing order in appeal No.VAD-CGST-002-APP-ADC-182-2023-24 dated 30.11.2024 and from taking any action against the petitioner pursuant to this order in appeal No.VAD-CGST-002-APP-ADC-182-2023-24 dated 30.11.2023; (D) An ex-parte ad-interim relief in terms of para 17(C) above may kindly be granted; [2] The brief facts of the case can be stated as under: [2.1] The petitioner is a company, inter alia, engaged in the business of manufacture of chemical products and has a Special Economic Zone at Dahej SEZ. A Letter of Permission for being operated as SEZ Unit is issued in favour of the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Input Tax Credit remains accumulated in the credit ledger because the outward supplies of SEZ Units are ordinarily made without payment of tax under LUT or a bond and thus, the Input Tax Credit of input supplies is not utilized for discharging tax on the outward supplies. [2.4] The petitioner, therefore, lodged online claim for refund of Rs. 65,05,135/- under Rule 89 (4) of the Rules and the category of refund was shown in the claim as Export of goods / services without payment of tax (accumulated ITC) . The said claim was for the tax period of May 2021 to March 2022. [2.5] The Assistant Commissioner issued a notice in Form GST RFD-08 dated 17th October 2022 for reducing the amount of refund claimed by the petitioner on the ground tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by way of this petition with the aforesaid prayers. [4] We have heard learned advocate Mr. Paresh M. Dave for the petitioner and learned advocate Mr. Siddharth Dave for the respondents. [5] Learned advocate Mr. Dave for the petitioner, at the outset, submitted that the issue with regard to the entitlement of an SEZ Unit for claiming refund of unutilized ITC accumulated under Rule 89 of the CGST Rules because of exports made without payment of tax under LUT is well settled by the Coordinate Bench of this Court in the case of Britannia Industries Limited vs. Union of India reported in 2020 (42) G.S.T.L. 3 (Guj). He further submitted that although the S.L.P. against the said decision is pending, but no stay has been granted by the Hon ble Apex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving gone through the material placed on record, in our considered opinion, the issue involved in the present petition is no more res integra in view of the decision of the Coordinate Bench of this Court in the case of Britannia Industries Limited (supra). The relevant observations in the case of Britannia Industries Limited (supra) are as under: 21. In facts of the present case, instead of Rule 96 as was applicable in case of M/s. Amit Cotton Industries(supra), Rule 89 would be applicable which is pertaining to refund of the input tax credit. Rule 89 of the CGST Rules provides for procedure for application for refund of tax, interest, penalty, fees and prescribes that in respect of supplies to a SEZ unit, the application for refund has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de by the SEZ unit of the petitioner is required to be granted. 23. We are of the opinion that in view of the aforesaid decision in case of M/s. Amit Cotton Industries (supra), the petitioner is entitled to claim refund of the IGST lying in the Electronic Credit Ledger as there is no specific supplier who can claim the refund under the provisions of the CGST Act and the CGST Rules as input tax credit is distributed by the input service distributor. 24. For the foregoing reasons, the petition succeeds and is accordingly allowed. The impugned order is quashed and set aside. The respondents are directed to process the claim of refund made by the petitioner for unutilized IGST credit lying in Electronic Credit Ledger under section 54 of the CGS ..... X X X X Extracts X X X X X X X X Extracts X X X X
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