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Corporate News *  Missing seized records must be considered while testing ITC claim; duplicate GST demands ordered corrected: Delhi High Court. *  GST appeal can’t be rejected without addressing taxpayer’s grounds: Allahabad High Court. *  Surplus IGST credit can offset CGST, SGST shortfall: GSTAT. *  GST refund can’t be denied when cancelled airfares are returned with tax: GSTAT. *  3 Hearing notices issued within 2 minutes: Gujarat High Court flags portal flaw, seeks report. *  GSTR-9, GSTR-9C filing for FY 2025-26 enabled; pending GSTR-1 and GSTR-3B must be filed first. *  Dupattas are exempt fabrics, can’t be taxed as fibres at 4%: Madras High Court. *  Full transitional credit allowed on capital goods received after GST rollout: GSTAT denies Rs. 6.99 lakh export duty credit. *  GST return mismatch alone can’t justify fraud proceedings: GSTAT orders fresh adjudication under section 73. *  Supplier found non-existent later can’t alone justify input tax credit denial: GSTAT. *  GST interest stops once tax reaches government account, can’t run until return filing: GSTAT. *  Cancelled flat booking- GST refund can’t be denied without excluding COVID period from limitation: GSTAT. *  India notifies rules of origin for India–New Zealand FTA. *  Incomplete E-bike kits classifiable as complete vehicles, but not eligible for CKD duty concession: CESTAT. *  Same GST rate on main input and output can’t by itself bar inverted duty refund: GSTAT. *  Unjust enrichment doesn’t apply to customs refunds from assessments finalised before July 13, 2006: Gujarat High Court. *  CENVAT credit can’t be denied solely because plant And machinery are embedded in earth: Karnataka High Court. *  DFIA exports ineligible for RoDTEP benefits; customs directs repayment with applicable interest. *  Second E-Way bill alone doesn’t prove another supply: GSTAT. *  Bail denied in Rs. 1.19 crore fake GST refund case over risk of accused absconding again: Punjab and Haryana High Court. *  GST registration can be restored after revocation deadline if outstanding dues are paid: Gauhati High Court. *  Multiple GST proceedings over same suppliers: Calcutta High Court directs dept. to share findings for adjudication. *  E-Governance portal services not OIDAR, fixed deposit interest not taxable: CESTAT. *  Rs. 500 Stamp duty required on authority letters for CAs, CMA and GST practitioners in Pune GST division.  *  Rs. 1.10 crore GST refund must be paid in cash after business closure: Allahabad High Court. *  Godown rent attracts 18% GST even when used exclusively for exempt agricultural warehousing: AAR. *  GST portal launches "Multi-State Registration" facility: one master TRN for registration applications across multiple States/UTs. *  RoDTEP scheme extended till 31st December, 2026.  *  Mere disagreement with order can’t override Rs. 20 lakh appeal limit: GSTAT. *  Customs interest can’t be backdated before confiscation liability is determined; nearly 8 year period excluded: Delhi High Court.
Subject News *  GST summons: anticipatory bail maintainable without arrest order, but relief denied in evasion case: Allahabad High Court. *  GST Appeal can’t be decided without hearing taxpayer’s objections to fresh evidence: Allahabad High Court. *  GST ITC can’t be reversed merely because supplier grants discount without reducing tax liability: GSTAT. *  Mere quoting of GST provision is not a valid charge: GSTAT quashes ITC denial. *  Personal hearing mandatory before adverse GST order, even without taxpayer’s request: Rajasthan High Court. *  Parallel bail pleas without full disclosure amount to abuse of process Rs. 43.08 crore GST case sent for fresh hearing: Supreme Court. *  GST refund based on unchallenged advance ruling can’t be recovered using later circular: GSTAT. *  Payment of GST alone doesn’t end interest and penalty liability when tax and interest remain unpaid beyond 30 days of notice: GSTAT. *  GST demand over builders’ 80% procurement rule requires reasoned adjudication: GSTAT. *  Eligible ITC doesn’t automatically entitle taxpayers to compensation cess refund on domestic sales: GSTAT. *  GST confiscation order passed before reply deadline invalid: GSTAT. *  GST interest can’t be retained after tax refund on delayed export receipts: Punjab & Haryana High Court. *  GST appeal can’t be dismissed over pre-deposit shortfall without opportunity To respond: Bombay High Court. *  DGGI SCN can’t be challenged before reply and adjudication:Chhattisgarh High Court. *  GST input tax credit can’t be denied solely due to supplier’s retrospective registration cancellation: GSTAT. *  GST notice must explain fraud allegations; merely repeating section 74 Is not enough:  Himachal Pradesh High Court. *  Audit detection alone can’t justify GST fraud penalty; specific suppression must be proved: GSTAT. *  GST order uploaded only under ‘Additional Notices’ tab without separate intimation set aside: Calcutta High Court. *  Service Tax appeal can’t be rejected for missing pre-deposit proof when payment is already recorded: CESTAT. *  SGST dept. can’t hear appeal against CGST order: Calcutta High Court. *  Mere dispatch of tax order can’t prove service or make appeal time-barred: CESTAT. *  Dealer incentives can’t be taxed merely on ledger entries: CESTAT. *  DGFT orders quashed for failure to supply DRI letter relied upon in SCN: Bombay High Court. *  GST penalty u/s 122(1A) can’t apply to Pre-2021 transactions; unregistered beneficiaries also covered: Delhi High Court. *  Expired E-way bill caused by wrong PIN code can’t justify GST penalty without intent to evade tax: GSTAT. *  Used railway rails can’t be taxed as track material without proof they are fit for reuse: CESTAT. *  Earlier DGGI notice doesn’t bar separate GST demand on different issue: Delhi High Court. *  ITC dispute involves no question of law: GSTAT directs appeal to Vice-President. *  Earlier DGGI notice doesn’t bar separate GST demand On different issue: Delhi High Court. *  No E-way bill required for interstate goods movement in november 2017: GSTAT quashes detention and penalty.  

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PJ/Case Law/2020-2021/3622

The Writ Petition has been filed seeking for refund Rs. 4,80,355/- of IGST paid by the petitioner for the goods exported from India, i.e. ?Zero-Rated Supplies? which was withhold by department since petitioner has availed duty drawback on higher rate.

PRECOT MERIDIAN LTD. Versus COMMISSIONER OF CUSTOMS, TUTICORIN 2020 (34) G.S.T.L. 27 (Mad.) W.P. (MD) No. 20504 of 2019, decided on 19-11-2019

 Issue - The Writ Petition has been filed seeking for refund Rs. 4,80,355/- of IGST paid by the petitioner for the goods exported from India, i.e. ‘Zero-Rated Supplies’ which was withhold by department since petitioner has availed duty drawback on higher rate.

 Brief Facts- The petitioner is an exporter of cotton. During September, 2017, he exported cotton by way of seven shipping bills and paid Rs. 4,80,355/- towards IGST. He exported after paying the tax and as such, he is entitled to refund of tax paid as per Section 16(3) of the CGST Act, 2017.

Section 54 of the CGST Tax Act, 2017, specifies that subject to the provisions of sub-section (10), a registered person may claim refund at the end of any tax period.

In the instant case, the petitioner has wrongly availed the higher duty drawback to the tune of Rs. 75,454/- on 2-3-2018. Thereafter, he rectified the mistake by repaying it along with interest to the tune of Rs. 81,891/- and sought for refund of IGST paid by him. The respondents, relying on the circular issued by the Government vide Circular No. 37/2018-Customs, dated 9-10-2018, would contend that a person, who has made request consciously for refund of duty drawback, is not entitled to IGST/ITC claims and treated that exporter has consciously relinquished the same. Further, the respondents vehemently contend that the petitioner has wrongly claimed higher duty drawback and thereafter, on his own volition, but, without any sanction from the department, has paid it back. Having relinquished his right to get refund of IGST, he is not entitled to refund. Further, the entire refund is system-managed and it cannot be manually operated. Once the exporter draws higher duty drawback, the system automatically scrolls out IGST refund. Therefore, the petitioner is not entitled to refund.

Reasoning of the Judgment- The court said that the petitioner is entitled for refund and it cannot be ignored by citing the circular.

The Hon’ble Supreme Court, in a similar circumstance, in the case of Commissioner of Central Excise, Bolpur v. Ratan Melting and Wire Industries [2008 (12) S.T.R. 416 (S.C.)], has held that circulars cannot prevail over the statute. Circulars are issued only to clarify the statutory provision and it cannot alter or prevail over the statutory provision. In that circumstance, it is clear that the explanation of provisions of drawback has nothing to do with the IGST refund. In view of that matter, Circular No. 37/2018-Customs, dated 9-10-2018 cannot have an application in the present case. Paragraph 2.5 reads as under:

“By declaring drawback serial number suffixed with A or C and by making above stated declarations, the exporters consciously relinquished their IGST/ITC claims.”

When the above circular was dealt with by the Hon’ble Division Bench of Gujarat High Court at Ahmedabad in M/s. Amit Cotton Industries Through Partner, Veljibhai Virjibhai Ranipa v. Principal Commissioner of Customs, in R/Special Civil Application No. 20126 of 2018, dated 27-6-2019 [2019 (29) G.S.T.L. 200 (Guj.)], the Division Bench has held that it has nothing to do with the IGST refund and it is incumbent on the respondents to refund the IGST as claimed by the petitioner therein. The respondents have already passed a circular when they were facing lot of problems because of the fact that the refunds are completely system-managed and they have taken a conscious decision to refund the amount vide Circular No. 40/2018-Customs, dated 24-10-2018.

Decision- The Writ Petition is allowed accordingly.

The respondents were directed to refund the amount of Rs. 4,80,355/- of IGST paid by the petitioner for the goods exported from India which are zero-rated supplies, within a period of six weeks from the date of receipt of a copy of this order.

Comment- The contentions by the department that that a person, who has made request consciously for refund of duty drawback, is not entitled to IGST/ITC claims and treated that exporter has consciously relinquished the same is not tenable. The petitioner has voluntarily deposited duty drawback along with the interest and hence, it makes him eligible for refund of IGST paid. The department pleading that refund can’t be granted because the system is manually operated is totally an excuse. In case of M/S DEENDAYAL PORT TRUST VERSUS UNION OF INDIA, the Gujarat High Court granted benefit to the petitioner on account of technical glitch on the erstwhile aces portal not allowing the assessee to revise ST-3 return second time while there was no such restriction in Rule 7B of the Service Tax Rules, 1994. Therefore, one can perceive that the above decisions will be a useful precedent for availing various benefits which are being denied to the assessee due to technical glitches on the portal in GST regime too. Another important analogy of this decision is substantive right cannot be lapsed due to technical breaches. This is very important that procedural requirements cannot take away the substantive right.
Prepared by - CA Preksha Jain

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