Petitioner | ATC Tires Pvt. Ltd. |
Respondent | Jt. Commissioner of GST & Central Excise (Appeals) |
Decision by | Madras High Court |
Date of order or Judgement | 8-March-2022 |
Citation no. | W.P. (MD) No. : 949 of 2022 2022 (3) GSTPanacea 55 HC Madras |
Hon’ble Judge | Justice C. Saravanan |
Decision | In Favour of Assessee |
No bar under Rule 89(1) for refund of unutilized ITC. Rule is not intended to deny the legitimate benefit available to an exporter effecting zero-rated supplies.
No bar under Rule 89(1) for Refund-Facts of the Case
No bar under Rule 89(1) for Refund-The petitioner has two manufacturing units in India.
One is the Special Economic Zone Unit (SEZ) Tamil Nadu and the other an Export Oriented Unit (EOU) in the State of Gujarat.
The petitioner’s SEZ Unit in addition to physical export of goods also made few domestic supplies in the Domestic Tariff Area (DTA).
It is the case of the petitioner that the exports made from its SEZ unit amounts to ‘zero-rated supply’ within the meaning of Section 2(23) of the IGST Act.
Therefore the petitioner was entitled for refund of tax paid on input and input services under Section 16(3)(a) of the IGST Act.
Refund claims were sought to be denied by the respondent and therefore, the show cause notice was issued to the petitioner.
Appeal against the SCN is also rejected.
Argument Before Court
No bar under Rule 89(1) for Refund-Petitioner’s Contention
No bar under Rule 89(1) for Refund-The learned counsel for the petitioner submits that the exports made by the petitioner from its SEZ Unit, the Petitioner filed refund claims of accumulated input tax credit which was distributed by the petitioner’s Head Office as Input Service Distributor.
Petitioner’s Head Office has distributed proportionate input tax on the services, which were commonly used for the petitioner’s Head Office, petitioner’s SEZ unit and the EOU unit.
Under section 16(3) of IGST Act he is entitled for refund of ITC pertaining to such common input services, which is allocated to SEZ unit, as exports made by its SEZ unit amounts to ‘zero-rated supply’.
No bar under Rule 89(1) for Refund-Respondent’s Argument
No bar under Rule 89(1) for Refund-The respondents submitted that the petitioner is entitled for refund for unutilized input tax credit, which was passed by the petitioner’s Head Office as an input service distributor within the meaning of Section 16 (1) of the I.G.S.T. Act. It is submitted that as per Section 54(3) of I.G.S.T. Act read with Rule 89(1) of the C.G.S.T. Rules 2017, it is clear that when the supply is made to a Special Economic Zone Unit or a Special Economic Zone developer, the supplier of goods or receiver is entitled to file refund application.
It is, therefore, submitted that since the petitioner is a recipient of service, the benefits of refund on IGST bond on input service in terms of above provision would not inure to the petitioner
Madras High Court Held
No bar under Rule 89(1) for Refund-The impugned order proceeds on the assumption that application for refund in respect of supplies to a Special Economic Zone or a Special Economic Zone Developer, can be filed only by a supplier of the goods or services in terms of second proviso to Rule 89 (1) of Central Goods and Service Tax Rules, 2017.
The Madras High Court observed that there is no merit in the impugned order passed by the respondent denying the benefit of refund of unutilized input tax credit of zero rated supplies effected by the petitioner. It is concluded that supply made by petitioner is a zero-rated supply, refund to him u/s 16(3)(a) of IGST Act can not be denied.
The petitioner’s export falls under proviso to Sec. 54(2) of CGST Act, and there is no bar under Rule 89(1)for refund of unutilized ITC.
The Rule is not intended to deny the legitimate benefit available to an exporter effecting zero-rated supplies. In this connection, reference is made to the decision of the Hon’ble Supreme Court in Unichem Laboratory Vs Collector of Central Excise, Bombay reported in 2002 (145) ELT 502 (SC), wherein the Hon’ble Supreme Court held as follows:-
For the aforementioned reasons, we are of the view that denial of benefit of the notification to the appellant was unfair. There can be no doubt that the authorities functioning under the Act must, as are in duty bound, protect the interest of the Revenue by levying and collecting the duty in accordance with law — no less and also no more. It is no part of their duty to deprive an assessee of the benefit available to him in law with a view to augment the quantum of duty for the benefit of the Revenue. They must act reasonably and fairly.
In view of above, there is no merit in the impugned order denying benefit of refund of unutilized ITC effected by petitioner.
Therefore this writ petition together with consequential relief allowed to the petitioner.
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