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TMI Blog2025 (1) TMI 1131X X X X Extracts X X X X X X X X Extracts X X X X ..... holding that Notification No.54 of 2018 shall apply prospectively with effect from 9th October, 2018 only. The summons, issued, notices as well as recovery proceedings on the basis of retrospective operation of Notification No.54 of 2018 dated 09.10.2018 is held to be without jurisdiction. The summons issued, notices as well as recovery proceedings are quashed and set aside as Notification No.54/2018 would be applicable prospectively with effect from 09.10.2018 and therefore, the amount quantified for the period prior to 09.10.2018 towards alleged erroneous refund would not survive. Petition disposed off. X X X X Extracts X X X X X X X X Extracts X X X X ..... ioners that the petitioners took benefit of such notification and imported goods without payment of customs duty as well as IGST and the petitioners manufacture finished products from the raw material imported from outside the country and such products were exported in compliance with their export obligations as export oriented units. 7. It is the case of the petitioners 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 for. Acting on the basis of such clear statutory provision the members of petitioner association chose the second option of exporting the goods on payment of IGST. 8. Rule 96 of the CGST Rules provides that in case of exports made on payment of tax the shipping bill for export will itself be treated as an application for refund and the same will be processed online by the Customs department and accordingly the shipping bills of the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioners by the Customs authorities. 12. 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 notice in the matter by order dated 28.9.2018. 13. 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. 14. 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 paid on exports to importers who had availed benefit of import as Export oriented unit. 15. The cumulative effect of Notifications numbered 53 and 54/2018- Central Tax issued on 9.10.2018 was that the retrospective amendment of Rule 96(10) made by Notification No. 39/2018- Central Tax was done away with and the said amendment was made prospective with effect from 9.10.2018. 16. It is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have not made exports on payment of IGST after 9.10.2018 which is the date of issuance of Notification No. 54/2018 which fact was clearly conveyed to the respondents at the time of their visit and even then they insisted for recovery by retrospectively applying Notification No. 54/2018. 21. It is the case of the petitioners that the petitioners had submitted in the letter that they could even consider making payment of IGST refund provided input tax credit of the same was given to them, however the petitioners were informed that there was no mechanism for giving credit of amount paid by the petitioners. Thereafter the petitioners submitted the documents as required by the Respondents along with letter dated 18.2.2021. 22. Thereafter oral communication between the petitioners and respondent No. 3 continued. The respondent No. 3 again issued impugned summons dated 16.11.2021 calling the petitioners regarding IGST refund received on exports made during the period from 1.7.2017 to 9.10.2018. 23. Subsequent to filing of the petition, civil application came to be filed seeking amendment to bring on record subsequent notices issued by the respondent and challenging the same. 24. Bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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; or (b) availed the benefit of 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 10 October, 2017 or notification No. 79/2017- 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 1299(E), dated the 13th October, 2017, the refund of input tax credit, availed in respect of inputs received under the said notifications for export of goods and the input tax credit availed in respect of other inputs or input services to the extent used in making such export of goods, shall be granted.". 3. In the said rules, in rule 96, for sub-rule (10), the following sub-rule shall be substituted, namely:- "(10) The perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, dated 9th October 2018 issued by the respondent no.1 the Ministry of Finance with effect from 9th October, 2018 and corresponding provisions were also introduced in the GGST Rules by the respondent no.2 State of Gujarat." ii) In para 4.5 words "with effect from 1 st July 2017" in third line from bottom shall stand deleted and further the words at the end of para "sub-rule (10) provides for the exemption for AA license holders importing goods from levy of custom duties and IGST" also stand deleted. iii) In para. 4.6, the words "with effect from 23rd October, 2017" shall stand deleted in 13th line from the bottom of the para. iv) In para. 8.3 in second line words "w.e.f 01.04.2017" stands deleted and is substituted by words "w.e.f. 01.07.2017". Para. 8.3 shall read as under: "8.3. After coming into force of GST regime w.e.f. 01.07.2017, Notification No. 79/2017- Customs, dated 13th October 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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. 9th October, 2018 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 as amended by the Notification No.54/2018 by substituting subrule (10) of Rule 96 of CGST Rules, in consonance with subsection (3) of Section 54 of the CGST Act and Section 16 of the IGST Act. Rule is made absolute to the aforesaid extent, with no order as to costs." 37. The above mistakes which are apparent on record are rectified and CAV judgment dated 20th October, 2020 therefore, now shall stand corrected accordingly. Registry to issue fresh writ accordingly. 38. Misc. Civil Application stands disposed of. 39. In view of above or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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