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TMI Blog2024 (11) TMI 905X X X X Extracts X X X X X X X X Extracts X X X X ..... ous refund would not survive. Petition is disposed of. - HONOURABLE MR. JUSTICE BHARGAV D. KARIA AND HONOURABLE MR. JUSTICE NIRAL R. MEHTA UCHIT N SHETH(7336) FOR THE PETITIONER(S) NO. 1 NOTICE SERVED FOR THE RESPONDENT(S) NO. 1,2 NOTICE SERVED BY DS FOR THE RESPONDENT(S) NO. 3,4,5 ORDER ( PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA ) 1. Heard learned advocate Mr. Uchit N. Sheth for the petitioner and learned advocate Mr. Siddharth Dave for the respondents. 2. Having regard to the controversy involved which is a narrow compass, with the consent of the learned advocate for the respective parties, the matter is taken up for hearing. 3. Rule returnable forthwith. Learned advocate Mr. Siddharth Dave waives service of notice of rule on behalf of the respondent. 4. By this petition under Article 227 of the Constitution of India, the petitioner has prayed for the following reliefs: A. This Hon'ble Court may be pleased to declare that Rule 96(10) of the CGST Rules as amended by Notification No. 54/2018- Central Tax dated 9.10.2018 (annexed at Annexure A) is applicably prospectively with effect from the date of the notification and the retrospectivity sought to be given to such noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emption to IGST leviable under Section 3(7) of the Customs Act on imports made against advance authorization. 10. Simultaneous amendment was made to the Notification No. 18/2015 Customs dated 1.4.2015 by Notification No 79/2015 whereby inter-alia exemption was granted from payment of IGST to importers importing goods against advance authorization licenses. 11. The petitioner took benefit of such notifications and imported goods against advance authorizations without payment of customs duty as well as IGST from 13.10.2017 onwards. 12. It is the case of the petitioner that the petitioner manufactured pharmaceutical products from the raw material imported from outside the country and such pharmaceutical products were exported in compliance with the advance authorizations. 13. It is the case of the petitioner that two options have been given to exporters under the GST Acts i.e. (i) export goods under bond/Letter of Undertaking without making payment of IGST and claim refund of unutilized input tax credit attributable to exports and (ii) export on payment of IGST and claim refund of such tax paid on exports. It was therefore solely up to the exporter as to which option he wanted to opt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 17. It is the case of the petitioner that because of the retrospectivity given to the condition, the petitioner was automatically treated as having committed breach of such condition by making imports against advance authorization and exporting manufactured goods on payment of IGST even though refund of IGST claimed by the Petitioner earlier had actually been already disbursed to the Petitioner by the Customs authorities. 18. The retrospective introduction of Rule 96(10)(b) of the CGST Rules was challenged by an assessee namely M/s Zaveri and Co Pvt. Ltd. by filing Special Civil Application No. 15091 of 2018 before this Court on multiple grounds wherein this Court issued the notice in the matter by order dated 28.9.2018. 19. However, during the pendency of the petition, the retrospective effect given to Rule 96(10)(b) of the CGST Rules was withdrawn by Notification No. 53/2018-Central Tax dated 9.10.2018 and the rule as it stood prior to retrospective substitution by Notification No 39/2018 was restored. 20. On the very same day, another Notification No. 54/2018-Central Tax dated 9.10.2018 was issued whereby Rule 96(10) (b) was amended prospectively so as to disbar refund of IGST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 96(10) of the CGST Act. Therefore, in effect Notification No. 39/2018 dated 4th September, 2018 shall remain in force as amended by the Notification No.54/2018 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 wef. 23rd October 2017. Rule is made absolute to the aforesaid extent, with no order as to costs. 27. It is the case of the petitioner that the petitioner stopped making exports on payment of IGST immediately upon becoming aware of issuance of Notification No. 54/2018 and only few transactions were made during a period of 10 days after the notification because the petitioner had yet not come to know of such notification. However thereafter the petitioner has stopped making export on payment of IGST and even the refund in respect of few export transactions undertaken on payment of IGST after issuance of notification dated 9.10.2018 has been duly returned by the petitioner which fact was clearly conveyed to the respondents. The petitioner has even personally remained present before the respondents to present its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers 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 (Twelfth Amendment) Rules, 2018. (2) They shall come into force on the date of their publication in the Official Gazette. 2. In the Central Goods and Services Tax Rules, 2017 (hereinafter referred to as the said rules), in rule 89, for sub-rule (4B), the following sub-rule shall be substituted, namely:- (4B) Where the person claiming refund of unutilised input tax credit on account of zero rated supplies without payment of tax has- (a) received supplies on which the supplier has availed the benefit of the Government of India, Ministry of Finance, 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 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ital goods by such person against Export Promotion Capital Goods Scheme. . 35. On perusal of above notification, it is clear that same has come into effect from 9th October, 2018 and as such there is a mistake apparent on record in CAV judgment dated 20th October, 2020 wherein it is incorrectly stated that said notification has come into effect from 23rd October, 2017. 36. Therefore, following mistakes are rectified by deleting words with effect from 23rd October, 2017 with effect from 1 st April, 2017 , with effect from 1st July, 2017 etc. as narrated here in below : (i) In para 4.4 words with effect from 23rd October, 2017 appearing in third line from bottom shall stand deleted and substituted by words with effect from 9th October, 2018 . Thus para 4.4 shall read as under: 4.4. For the purpose of procedure for granting refund of IGST on the goods and services exported out of India, Rule96 of the Central Goods and Services Tax Rules, 2017 (for short 'the CGST Rules') provides the mechanism, as per the procedure prescribed under Section 54 of the CGST Act and GGST Act. Subrule (10) of Rule96 of the CGST Rules was introduced vide para3 of Notification No. 54/2018Central Tax, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule96 w.e.f. 23rd October 2017, and notification no.54/2018, the application of the substituted subrule (10) of Rule96 is made effective from 9th October, 2018, Therefore, the petitioner who has availed the benefit of the Notification No. 39/2018 would be entitled to get refund of IGST paid on input tax credit balance in the accounts of the petitioner from 23rd October, 2017 till 9th October, 2018. (vii) Para 8.15 shall be deleted from the CAV judgment as Notification No.16/2020-CT dated 23.03.2020 was not available when the arguments made by both the sides were concluded on 5th February, 2020 and the order was reserved on the same day and therefore, said para is not to be considered as part of CAV judgment because Notification No.16/2020 could not have been referred to in CAV judgment which has come into existence on 23rd March, 2020. (viii) In para 9 of the CAV judgment, words with effect from 23rd October, 2017 in line 4 shall be deleted and substituted by words with effect from 9th October, 2018 and last three lines of para 9 shall also stand deleted. Therefore, para 9 shall read as under: 9. In view of above amendment , the grievance of the petitioner raised in this petition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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