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TMI Blog2024 (10) TMI 275X X X X Extracts X X X X X X X X Extracts X X X X ..... all stand corrected accordingly. Registry to issue fresh writ accordingly. Misc. Civil Application stands disposed of. - HONOURABLE MR. JUSTICE BHARGAV D. KARIA and HONOURABLE MR. JUSTICE NIRAL R. MEHTA Appearance: For the Petitioner(s) No. 1 : Mr Bhavesh B Chokshi (3109). For the Respondent (s) No. 3,4 : Mr Siddharth H Dave (5306). For the Respondent(s) No. 1,2 : Rule Served by DS. IA ORDER (PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA) 1. Heard learned advocate Mr. Abhishek Rastogi with learned advocate Mr. Bhavesh B. Choksi for the applicant, learned advocate Mr. Siddharth H. Dave for the respondent Union of India and learned advocate Mr. Paresh M. Dave with learned advocate Mr. Parth Rachchh for the applicants in Civil Application. 2. Rule returnable forthwith. Learned advocate Mr. Siddharath H. Dave waives notice of service of rule on behalf of the respondent Union of India. 3. This application is filed for review of the CAV judgment and order dated 20.10.2020 passed in Special Civil Application No. 15833 of 2018 on various mistakes apparent on record pointed out in the Misc. Civil Application. 4. The applicant is the original petitioner and holder of Advance Authorization ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missions in light of the amendment made by addition of Explanation to Rule 96 (10) of the CGST Rules vide amendment granted on 23rd March, 2020 based on which the judgment and order was passed but for which no submission could be made by the applicant. 12. Civil Applications in this Misc. Civil Application have been filed by the affected party to be joined in the pending proceedings. 13. By judgment and order dated 20th October, 2020 passed in Special Civil Application No. 15833/2018 it is decided that Notification No. 54/2018 Central Tax dated 9th October, 2018 to the extent the said notification denies the option of rebate claim of the petitioner for importing goods under AA license is not ultra vires to the CGST Act and the CGST Rules. 14. Learned advocate Mr. Abhishek Rastogi appearing for the applicant-original petitioner submitted that in the CAV judgment, it is incorrectly stated that Sub-Rule (10) of Rule-96 of the CGST Rules was introduced vide para-3 of Notification No. 54/2018-Central Tax, dated 9th October, 2018, issued by the Respondent no. 1 Ministry of Finance w.e.f. 23rd October, 2017. It was further submitted that Notification No. 54/2018-CT was issued by responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efit of Notification No. 79 of 2017-Cus dated 13.10.2017 because restriction is imposed on the person filing the refund claim when the person buying goods has claimed benefit of Notification No. 79 of 2017-Cus dated 13.10.2017. 22. Learned advocate Mr. Rastogi also pointed out that para 8.10 of the CAV judgment also refers to the applicability of Notification No. 54/2018 with effect from 23rd October, 2017 instead of 9th October, 2018. 23. It was further pointed out that in para no.8.12, it is incorrectly recorded that the petitioner has availed the benefits under AA License Scheme to the extent the applicant petitioner had paid IGST against imports made under AA licenses and to the extent IGST is paid by the applicant petitioner, it has not availed any IGST benefit under AA License. 24. It was pointed out that fact about payment of IGST on goods procured for export purposes is also considered and since 23rd October, 2017, the petitioner has paid IGST of Rs. 4.56 crores to protect itself from departmental harassment and interest liability. It was therefore, prayed that to the extent of IGST paid, the petitioner is entitled to rebate claim filed under Rule 96 (10) of the CGST Rules. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er before the appropriate forum. It was further submitted that as per Rule 47 of the Code of Civil Procedure, 1908, such mistakes cannot be rectified in review application as it would amount to rehearing the matter. 32. From the above submissions it appears that there are mistakes apparent on record and it would therefore be germane to reproduce the operative portion of CAV judgment as under: 8.1. Having considered the submissions made by the learned advocates for both the sides and having gone through the materials on record, the short question which arises for the consideration is whether the amendment made by the Notification No. 54/2018 dated 9th October 2018 amending sub-rule (10) of Rule 96 of the CGST Rules is valid or not. 8.2. In order to consider the issue of validity of the Notification No. 54/2018 substituting the sub-rule (10) of Rule 96 of CGST Rules, it would be necessary to refer to the scheme of Advance Authorized Licenses. The Government of India, Ministry of Finance vide Notification No. 18/2015-Customs, dated 1st April 2015 issued in exercise of the powers conferred by Section 25 (1) of the Customs Act, 1962 (for short the Customs Act ) exempted materials import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lfilled by physical exports only; ; (c) after condition (xi), the following conditions shall be inserted, namely :- (xii) that the exemption from integrated tax and the goods and services tax compensation cess leviable thereon under sub-section (7) and sub-section (9) of section 3 of the said Customs Tariff Act shall be subject to pre-import condition; (xiii) that the exemption from integrated tax and the goods and services tax compensation cess leviable thereon under sub-section (7) and sub-section (9) of section 3 of the said Customs Tariff Act shall be available up to the 31st March, 2018. 8.4. Thus condition no. (xii) and (xiii) were inserted, whereby it was provided that the exemption from Integrated Tax and the Goods and Services Tax compensation Cess leviable thereon under sub-section (7) and sub-section (9) of Section 3 of Customs Tariff Act shall be subject to pre-import condition and available upto 31st March 2018. 8.5. Rule 96 of the CGST Rules provides for procedure of refund of Integrated Tax paid on goods or services exported out of India, as per Section 54 of the CGST Act. Rule 96 (10) as it originally existed, when the Rules came into force provided that the persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8/2017 and availed benefit under Notification No. 78/2017 or 79/2017 dated 13th October 2017. 8.8. It appears that, thereafter, again both the clauses which were substituted by Notification No. 39/2018 were merged by Notification No. 53/2018 dated 9th October 2018 which reads as under: Notification: 53/2018-C.T. dated 9-Oct-2018 Central Goods and Services Tax Rules, 2018 Eleventh Amendment of 2018 In exercise of the powers conferred by section 164 of the Central Goods and Services Tax Act, 2017 (12 of 2017), the Central Government hereby makes the following rules further to amend the Central Goods and Services Tax Rules, 2017, namely:- 1 (1) These rules may be called the Central Goods and Services Tax (Eleventh Amendment) Rules, 2018. (2) They shall be deemed to have come into force with effect from the 23rd October, 2017. 2 In the Central Goods and Services Tax Rules, 2017, in rule 96, for sub-rule (10), the following sub-rule shall be substituted and shall be deemed to have been substituted with effect from the 23rd October, 2017, namely:- (10) The persons claiming refund of integrated tax paid on exports of goods or services should not have received supplies on which the supplie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd of such tax paid on goods or services or both supplied. 8.12. Thus on conjoint readings of the provision of Section 16 of the IGST Act, Section 54 of CGST Act and Rule-96 (10) of CGST Rules, which is substituted by Notification No. 54/2018 dated 9th October 2018, it is apparent that the person who has availed the benefits of Notification No. 48/2017 dated 18th October 2017 and other Notifications as stated in sub-rule 10 shall not have the benefit of claiming refund of integrated tax paid on exports of goods or services. The petitioner has availed benefits under Advance Authorization License scheme as per the Notification No. 18/2015 which was amended by Notification No. 79/2017 dated 13th October 2017 and paid integrated tax on the goods procured by the petitioners for the export purpose. 8.13. Notification No. 48/2017-C.T. dated 18th October 2017 has declared the following goods and the explanation thereto states that, Advance Authorization means an authorization issued by the Director General of Foreign Trade under Chapter-4 of the Foreign Trade Policy 2015-20 for import or domestic procurement of inputs on pre-import basis for physical exports. Therefore, as the petitioner h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endment , the grievance of the petitioner raised in this petition is therefore taken care of . However, it is also made clear that Notification No. 54/2018 is required to be made applicable w.e.f. 23rd October, 2017 and not prior thereto from the inception of the Rule 96 (10) of the CGST Act. Therefore, in effect Notification No. 39/2018 dated 4th September, 2018 shall remain in force by substituting sub-rule (10) of Rule 96 of CGST Rules, in consonance with sub-section (3) of Section 54 of the CGST Act and Section 16 of the IGST Act. The Notification No. 54/2018 is therefore held to be effective w.e.f. 23rd October 2017 as per the Notification No. 39/2018 dated 4th September, 2018 w.e.f. 23rd October, 2017. Rule is made absolute to the aforesaid extent, with no order as to costs. 33. Considering the submissions made by learned advocate Mr. Rastogi and the findings recorded here in above from para nos. 8.1 to 9 and on perusal of the Notification No. 54/2018 dated 9th October, 2018 we are of the opinion that there is a mistake apparent on record in CAV judgment dated 20th October, 2020. 34. It would therefore, be necessary to refer to Notification No. 54/2018 which has come into eff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plies on which the benefit of the Government of India, Ministry of Finance notification No. 48/2017-Central Tax, dated the 18 deg October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1305 (E), dated the 18th October, 2017 except so far it relates to receipt of capital goods by such person against Export Promotion Capital Goods Scheme or notification No. 40/2017-Central Tax (Rate), dated the 23rd October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1320 (E), dated the 23rd October, 2017 or notification No. 41/2017-Integrated Tax (Rate), dated the 23rd October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1321 (E), dated the 23rd October, 2017 has been availed; or (b) availed the benefit under notification No. 78/2017-Customs, dated the 13th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1272(E), dated the 13th October, 2017 or notification No. 79/2017-Customs, dated the 13th October, 2017, published in the Gazette ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stituted with words prospectively and in the fifth line with effect from 23rd October, 2017 shall stand deleted and shall be substituted by words with effect from 9th October, 2018 . Para 8.10 shall read as under: 8.10. It is pertinent to note that the Notification No. 54/2018 is made applicable prospectively with effect from 9th October, 2018. vi) Para 8.13 of the CAV judgment and order shall stand substituted and read as under: Notification No. 48/2017-C.T. dated 18th October 2017 provides for granting benefit of exemption from payment of duty and Explanation thereto states that, Advance Authorization means an authorization issued by the Director General of Foreign Trade under Chapter4 of the Foreign Trade Policy 2015-20 for import or domestic procurement of inputs on pre-import basis for physical exports. Therefore, as the petitioner has availed the benefits of AA License as per Notification No. 48/2017 CT (Rate) dated 23rd October, 2017 and has enjoyed the exemption of GST on the supply of the goods from the registered supplier for the purpose of export on fulfilling the conditions prescribed therein, the petitioner would not be entitled to the benefit of refund of IGST paid on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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