ADF Foods Ltd. Vs Union of India (Gujarat High Court)
Gujarat High Court held that excess drawback on account of availing Cenvat Credit facility was repaid with interest. Hence, refund of IGST paid on goods and services paid on exported goods being zero rates supplies is duly admissible.
Facts- Vide the present petition, the petitioner challenges the inaction on the part of the respondents not to sanction the refund claims of integrated goods and service tax paid on exported goods i.e. “Zero Rated Supplies” through Mundra Customs Port.
It was their case that due to oversight, the Custom House Agent had inadvertently selected “A” suffixed with the serial number in the drawback notification which provides for higher drawback rates concerning cases where CENVAT facility has not been availed, instead of “B” which provides for lower draw back for cases that are otherwise. It was their case that the excess drawback on account of availing of CENVAT credit facility had been repaid with interest and therefore the petitioner is entitled to the refund of IGST in respect of the shipping bills.
Conclusion- Undisputedly the goods exported by the petitioner were “Zero Rated Supplies” and in accordance with Section 16(3)(b) of the IGST Act, the petitioner is entitled to refund of such tax paid on the goods and services. It was only through oversight that the custom house agent had selected ‘A’ rather than ‘B’.
The Division Bench held that the circular cannot run contrary to the statutory rule, more particularly, Rule 96. The Division Bench therefore, held that the circular had nothing to do with IGST refund. The petition was allowed directing the respondents to immediately sanction the refund of IGST.
Issue therefore raised in this petition is identical to the one decided by this Court and therefore, the petition on this count alone in light of the decision in the case of Amit Cotton deserves to be allowed and is accordingly allowed.
FULL TEXT OF THE JUDGMENT/ORDER OF GUJARAT HIGH COURT
1. RULE returnable forthwith. Mr. Ankit Shah learned advocate waives service of notice of Rule on behalf of the respondent no.1 and Mr. Nikunt Raval learned advocate waives service of notice of Rule on behalf of the respondent nos.3 to 8.
2. With the consent of learned advocates for the respective parties, the petition is taken up for final hearing.
3. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:
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(a) Your Lordships be pleased to admit and allow this petition;
(b) Your Lordships be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction to the Respondents to immediately sanction the refund of IGST paid in regard to the goods exported vide Shipping Bill Nos.8134141 dated 21.08.2017, 9044375 dated 03.10.2017, 8282183 dated 28.08.2017, 8359804 dated 31.08.2017, 8372438 dated 31.08.2017, 8402425 dated 01.09.2017, 8414985 dated 02.09.2017 and 8754952 dated 19.09.2017;
(c) That the Hon’ble Court may be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction to the Respondent authorities to pay interest @6% to the Petitioner herein on the amount of refund from the date of Shipping Bill till the date on which the amount of refund is paid to the petitioner, as the same is arbitrarily and illegally withheld by the Respondents;
(d) Pass order to grant an ex-parte, ad interim order in favour of the petitioner herein in terms of prayer clause ‘A’ and ‘B’ herein above;
(e) Pass such other orders and further orders as may be deemed necessary on the facts and circumstances of the case;
(f) Such other and further relief as this Hon’ble Court may deem fit and proper in the nature and circumstances of the case;
(g) Cost relating to the present petition.”
4. Facts in brief are as under:
4.1 The petitioner challenges the inaction on the part of the respondents not to sanction the refund claims of integrated goods and service tax paid on exported goods i.e. “Zero Rated Supplies” through Mundra Customs Port. The details of the shipping bills on which amounts of refund is claimed read as under:
