9911796707
TMI Blog2024 (12) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.2023 and accordingly, the petitioner reversed the ITC of Rs. 9,83,53,032/-. This Court is not going into the merits as to whether the petitioner is entitled to refund of the ITC under the provisions of the CGST and IGST Acts as the matter is sub-judice before the Appellate Authority. However, in the facts of the case, it is apparent that as per Rule 89 of the Rules when the petitioner filed the refund application, the Electronic Credit Ledger was again debited by the amount of the ITC which was claimed in the refund application. Thus, there are two debits in the Electronic Credit Ledger of the same amount once on 13.01.2023, when the petitioner was compelled to reverse the ITC during the summons proceedings by the respondent No. 4 and second time, by virtue of the operation of the provisions of the Rules at the time of filing of the refund application on 30th June, 2023. In the facts of the case, the ITC which was reversed by the petitioner on 13.01.2023 during the summons proceedings without there being any adjudication process, is required to be restored. The petition therefore succeeds to that extent only - the respondents are directed to restore the ITC of Rs. 9,83,53,032/- i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner submitted that in view of the subsequent development, prayer A is not pressed and only prayers B and C would survive. 6. The brief facts of the case are as under : 6.1. The petitioner is engaged in manufacturing and exporting of goods of its overseas parent Company i.e. Hilti Aktiengesellschaft and also undertakes research and development for the said Company. 6.2. The petitioner entered into transaction or purchase of the leasehold rights over land with the Sun Pharmaceutical Industries Limited in Month of March, 2021. The petitioner received the Tax Invoices dated 23rd July, 2021 and 29th July, 2021 in respect of the purchase of leasehold rights along with GST aggregating to Rs. 9,83,53,032/-. 6.3. The petitioner exported the goods to its overseas parent Company in Month of July, 2021 and also filed Form GSTR-3B on 20th August, 2021 for the month of July, 2021 and availed the Input Tax Credit (for short the ITC ) of Rs. 9,83,53,032/- which was reflected in its Form GSTR-2A for the said month. 6.4. On 03.01.2023, the petitioner filed refund claim of Rs. 9,73,40,675/- along with the letter dated 08.12.2022 of accumulated Input Tax Credit on account of exports under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner made follow up visit on 30th March, 2023 to the Office of the respondent No. 2-Assistant/Deputy Commissioner of CGST and Central Excise, Range II, Division VII, Navsari with a request of restore the ITC which was reversed under compulsion by the petitioner. 6.10. It is also the case of the petitioner that as the petitioner did not receive any response to the communication made by it on subject of restoration of ITC and as the normal limitation period for claiming refund for the month of July, 2021 was expiring in the month of June, 2023, the petitioner filed fresh refund application on 30th June, 2023. However, as per the provisions of Rule 89 of the Central Goods and Service Tax Rules, 2017 (for short the Rules ), as the petitioner has filed the refund application claiming the refund of the ITC, the Electronic Credit Ledger was again debited with the amount of the refund. It is therefore the case of the petitioner that there is double deduction, once the reversal of ITC by the petitioner on 13.01.2023 and second time when the petitioner filed the refund claim on 30th June, 2023. 6.11. The respondent No. 2 issued a notice in Form RFD-08 on 16th August, 2023 calling upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justified the claim of the ITC and the refund of the same in view of the export of the goods undertaken by the petitioner and the eligibility of the petitioner to claim the refund of the ITC under Section 54 (3) of the CGST Act read with Section 16 (3) (a) of the IGST Act. It was therefore submitted that the petitioner is entitled to the refund of the ITC already credited or not is subject matter of the Appeal, however, the petitioner could not have been compelled to reverse the ITC at the time of issuance of summons by the respondent No. 4. It was therefore submitted that without going into the merits as to whether the petitioner was eligible to claim the ITC or whether the petitioner is entitled to the refund of such ITC which was claimed by the petitioner, the ITC which was reversed by the petitioner on 13.01.2023 should be restored. 8.1. On the other hand, learned advocate Mr. Ankit Shah for the respondent-authorities submits that the petitioner voluntarily reversed the ITC when it was informed that the petitioner has wrongly availed the same on the transfer of the leasehold rights. 8.2. In support of his submissions, reliance was placed on the following averments made in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person of the Petitioner was again questioned about refund claim filed by the Petitioner is not correct as no question about refund claim filed by the Petitioner was asked by the Respondent No. 4 in statement recorded on 13.01.2023 under Section 70 of the CGST Act, 2017. Further, from the answer of question No. 9, of the Petitioner, it transpires that Respondent No. 4 has not threatened the authorized person of the petitioner with dire consequences in case the ITC was not reversed. On the contrary, the petitioner himself stated that we have reversed the ITC availed based on invoices raised by M/s. Sun Pharmaceuticals Industries Ltd amounting to Rs. 9.85 cr vide DRC 03 dated 13.01.2023 as gesture to show bonafide and cooperative measures to the opinion of the officers. Thus, the reversal of the ITC vide DRC-03 was made by the petitioner on 13.01.2023 was to show gesture and co-operation as stated by the petitioner himself on statement dated 13.01.2023 also vide letter dated 14.03.2023, addressed to the Additional Director General of DGGI, SZU, Further, the Petitioner, in his letter dated 14.03.2023 has submitted that they had reversed the ITC raised by M/s. Sun Pharmaceuticals Indu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. Having considered the submissions made by both the learned advocates as well as the material available on record, it appears that the petitioner claimed the ITC for the month of July, 2021 in the return filed in the Form GSTR-3B on the basis of the ITC reflected in Form GSTR-2A pertaining to the transfer of leasehold rights and accordingly, filed the refund claim on 03.01.2023 as the petitioner was engaged in the business of exports and petitioner was therefore entitled to the refund of the ITC available in the Electronic Credit Ledger as per the provisions of Section 54 (3) (b) of the CGST Act read with Section 16 (3) (a) of the IGST Act. 10. It appears from the material on record as well as the pleadings of the petitioner that the petitioner was compelled to reverse the ITC by the respondent No. 4 during the course of the summons proceedings on 12.01.2023 and 13.01.2023 and accordingly, the petitioner reversed the ITC of Rs. 9,83,53,032/-. 11. The petitioner thereafter filed the refund claim on 30th June, 2023 after failing to convince the respondents to restore the ITC which the petitioner was compelled to reverse on 13.01.2023. The refund claim filed by the petitioner was a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
