(M/s) Mega Jewels Private Limited Versus >2021(01)LCX0103

2021(01)LCX0103

Rajasthan High Court

M/s Mega Jewels Private Limited

D.B. Civil Writ Petition No. 6575/2020 decided on 27/01/2021

HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

D.B. Civil Writ Petition No. 6575/2020

M/s Mega Jewels Private Limited, Having Its Registered Office At F-57 Gem And Jewellery Zone, Epip, Sitapura Industrial Area, Jaipur - 302022 Rajasthan Through Its Director Siddik Husain Shaikh S/o Kasam Bhai Shaikh, Aged 70 Years, R/o A-5, Amina Manzil, Adrash Nagar Marg M.d. Road, Jaipur 302004 Rajasthan.

----Petitioner

Versus

1. Additional Commissioner (Appeals), Cgst, Central Excise And Customs, Jaipur, Ncr Building Statue Circle, CScheme, Jaipur-302005
2. Deputy Commissioner, Cgst, Division-F, Central Excise Building, Sector-10, Vidhyadhar Nagar, Jaipur.
3. Commissioner, Central Excise And Cgst, Jaipur, Ncr Building Statue Circle, C-Scheme, Jaipur-302005

----Respondents

For Petitioner(s) : Mr. Ankit Totuka
For Respondent(s) : Mr. Siddharth Ranka

HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SATISH KUMAR SHARMA

Order

27/01/2021

1. Defect No.12 is ignored.

2. The present writ application has come to be filed by the petitioner, namely M/s Mega Jewels Private Ltd. with the prayer to set aside the impugned order dated 03.01.2020 passed by respondent No.1 namely Additional Commissioner (Appeals), CGST Central Excise & Customs, Jaipur and with further prayer seeking writ, order or direction directing the respondent No.2 i.e. the Deputy Commissioner, CGST to sanction and disburse the refund amount at the earliest along with interest for delayed payment of refund.

3. Learned counsel for the petitioner has categorically submitted that refund applications were made by the petitioner in the month of May/June, 2018 for refund of unutilised input tax credit under Section 54(3) of the CGST Act, 2017. The Department in the impugned order sought to rely upon circular No. 14/14/2017-GST dated 06.11.2017 and submitted that since the petitioner did not comply with the requirements of the said circular/notification, the prayer for refund of unutilised input tax credit was refused.

4. On the other hand, the learned counsel for the respondents contends that against the impugned order passed by Additional Commissioner (Appeal), an appeal lies to Appellate Tribunal and the petitioner has the option to file appeal before the Tribunal whenever it is constituted.

5. This Court is of the considered view that since as of now the Tribunal has not been constituted, the petitioner cannot be remediless. Therefore, he was right in approaching this Court.

6. When the matter came up for admission on 11.01.2021, learned counsel for the Revenue was asked to submit an additional affidavit and/or documents in response to the contentions raised by the learned counsel for the petitioner and in compliance thereof, Mr. Siddharth Ranka, learned counsel for the respondents has filed an affidavit today i.e. 27.01.2021 with copy being served on petitioner’s counsel. Following has been stated in paras 4 & 5 of the affidavit dated 27.01.2021:-

“4. That the difference in procedure for claiming refund by EOU units and normal exporters is as follows:-

4.1 That prior to amendment of Rule 89 of the CGST Rules, 2017 vide notification No.47/2017- Central Tax, dated 18.10.2017 or afterward, there was no difference in procedure for claiming refund by EOU units and normal exporters.

4.2 However, amendment made in Rule 89 vide notification No. 47/2017-Central Tax, dated 18.10.2017 substituted third proviso in sub-Rule (1) of Rule 89 which provided as under:-

Provided also that in respect of supplies regarded as deemed exports, the application may be filed by,

(a) the recipient of deemed export supplies; or

(b) the supplier of deemed export supplies in cases where the recipient does not avail of input tax credit on such supplies and furnishes an undertaking to the effect that the supplier may claim the refund:

4.3 That prior to substitution, third proviso read as under:-

Provided also that in respect of supplies regarded as deemed exports, the application shall be filed by the recipient of deemed export suplies.

4.4 …….”

5. That in case of refund of unutilised input tax credit under Section 54(3) of the CGST Act, 2017, there was no requirement of prior intimation/approval from the Development Commissioner prior to the issuance of Circular No.14/14/2017-GST, dated 6.11.2017 or notification No. 48/2017-Central Tax, dated 18.10.2017.”

7. We are in complete agreement with the views expressed by the Department in Para 5 of the affidavit inasmuch as the circular is absolutely clear and the Department cannot insist upon an assessee to retrospectively comply with the circular. Consequently, we hold that the said circular operates prospectively from the date of the notification and not retrospectively since the circular came into effect from 06.11.2017. The said notification would have no application for the transactions entered into prior thereto.

8. It is also clarified by the learned counsel for the Revenue that in the circumstances of the present case, there is no chance for supplier seeking refund thereof and consequently, there is no opportunity of double claim for unutilised input tax credit. To govern the procedure for claiming refund on such supplies, circular No.14/14/2017-GST, dated 06.11.2017 was issued, which also provided certain safeguards to prevent any dual claims of refunds.

10. In view of the categorical assertion made by the learned counsel representing the Revenue that the aforesaid circular and notification would have no application to transactions entered into prior to the aforesaid circular and since admittedly the transactions for refund of unutilised input tax credit claimed pertains to the period July to October, 2017, consequently, there is no lawful impediment in justifying denial of refund of unutilised input tax credit to the petitioner.

11. In the result, the writ application is allowed. The impugned order dated 03.01.2020 is set aside and directions are issued to respondent No.2 to effect refund of unutilised input tax credit along with statutory interest that may be payable thereof within a period of two weeks from the date of the service of the certified copy of this order on the respondents.

(SATISH KUMAR SHARMA),J

(INDRAJIT MAHANTY),CJ

Equivalent .