Gujarat High Court
Pee Gee Fabrics Private Limited vs Union Of India on 15 September, 2023
Bench: Bhargav D. Karia
NEUTRAL CITATION
C/SCA/5010/2021 CAV JUDGMENT DATED: 15/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5010 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PEE GEE FABRICS PRIVATE LIMITED
Versus
UNION OF INDIA
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Appearance:
HIREN J TRIVEDI(8808) for the Petitioner(s) No. 1,2
MR HARSHEEL D SHUKLA(6158) for the Respondent(s) No. 1
MR NIKUNT K RAVAL(5558) for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 15/09/2023
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CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA)
1.Heard learned advocate Mr. H.J. Trivedi for
the petitioners, learned advocate Mr.
Harsheel D. Shukla for respondent no.1 and
learned advocate Mr. Nikunt Raval for
respondent nos.2 and 3.
2.Learned advocate Mr. H.J. Trivedi has
tendered a draft amendment. The same is
allowed in terms of the draft. To be carried
out forthwith.
3.By the draft amendment, learned advocate has
sought to replace Annexure-G with order dated
12.09.2019 whereby the refund application of
the petitioners is rejected.
4.Rule returnable forthwith. Learned advocate
Mr. Harsheel D. Shukla waives service of
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notice of rule on behalf of respondent no.1
and learned advocate Mr. Nikunt Raval waives
service of notice of rule on behalf of
respondent nos.2 and 3.
5.By this petition under Article 226 of the
Constitution of India, the petitioners have
challenged order dated 29.09.2020 issued on
21.10.2020 passed by the Joint Commissioner,
(Appeals), Ahmedabad confirming the order
dated 12.09.2019 passed by the Deputy
Commissioner, Central GST, rejecting the
refund application dated 08.08.2019 filed by
the petitioner no.1 in Form GST RFD-01A file
bearing ARN No. AA240819017945S.
6.The petitioner no.1-Company is registered as
manufacturing services in textile division
under the Central Goods and Service Tax Act,
2017 (For short "the GST Act") having
Registration No. 24AAACP8774BIZI. The
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petitioner Company is engaged in the
business of textile manufacturing of fabrics
i.e. from raw yarn and trading activity of
fabrics.
7.The petitioner company is liable to pay GST
at the rate of 5% on the sale of fabrics
whereas raw materials used for manufacturing
of fabrics i.e. yarn, colour and chemical,
stores and consumable, Power and Fuel are
chargeable at higher rate ranging from 12% to
28% under the GST Act.
8.Accordingly, the petitioner no.1 Company is
eligible to avail refund of Input Tax Credit
(hereinafter referred to as 'ITC') due to
inverted duty tax structure as per section
54(3)(ii) of the GST Act.
9.As per the Government Notification No
5/2017, the petitioner company was not
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entitled to claim refund of unutilised Input
Tax Credit on woven fabrics as well as
knitted fabrics.
10. It is the case of the petitioners that
restriction imposed by Notification No 5/2017
was removed by another Notification 20/2018
dated 26.07.2018. Accordingly, the petitioner
company was eligible to claim refund of
accumulated ITC under Inverted Refund
Structure from August 2018 onwards with
condition to comply with the Notification
20/2018 as well as clarification for
calculating the lapse of credit as provided
in Circular No.56/2018 dated 24.08.2018.
11. The petitioner company filed its return
under the GST Act regularly for the Financial
Year 2017-2018. The petitioner company came
to know about claiming wrong credit on
capital goods for the Financial Year 2017 as
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it had already claimed depreciation on the
GST amount which was charged in the invoice
while buying such capital goods. The
petitioners therefore, were required to
reverse the credit claimed on ITC of such
capital goods. The bifurcation of such ITC
which requires reversal is as under:
Particulars IGST CGST SGST Total Remarks
Credit 9,94,811/- 8,689/- 8,689/- 10,12,189/- As
Reversed in mentioned
August 18 in 3B for
GSTR-3B August
CAPEX 9,37,930/- 9,37,930/- The said
Credit for credit was
the month for
of July imported
2017 looms
which the
petitioner
no.1-
company
had opted
to
capitalise
and
accordingl
y reversed
in 3B for
August
2018.
CAPEX 56,880/- 56,880/- The said
Credit for credit was
the month for
of August Machine
2017 which for
which the
petitioner
no.1-
Company
opted not
to avail
the credit
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Credit for 8,689/- 8,689/- 17,378/- The
Service of petitioner
Telephone no.1-
bills for Company
the month had
of August reversed
2018 the credit
of
Services
(not
goods)
hence does
not affect
the refund
amount as
the
petitioner
no.1-
Company
have
claimed
refund for
goods only
Total 9,94,810/- 8,689/- 8,689/- 10,12,188/-
12. It is the case of the petitioners that
as per the Rules 42 and 43 of the CGST Rules
2017, Form DRC-03 can be used for reversal of
ITC. However, due to non-availability of DRC-
03 on GST Portal, the petitioner Company had
reversed the ITC in Form GSTR-3B for the
month of August 2018. The petitioner Company
also claimed credit in respect of supplies of
goods of Rs. 56,01,017/- under the inverted
duty tax structure and Rs. 1,14,689/-
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pertaining to supplies of services, for which
the petitioner Company was not entitled to
credit under the inverted duty tax structure.
The summary of ITC as per GSTR-3B for the
month of August 2018 is as under:
Particulars Amount
ITC available for the month of Aug 57,68,728/-
Less: ITC reversed for FY 2017-18 10,12,188/-
Net ITC available 47,56,539/-
Less: Liability for the month of Aug (32,02,738/-)
Net ITC available for refund as per 15,53,801/-
portal configuration
13. The petitioners have become eligible to
claim refund of ITC from August 2018 as per
the Notification No. 20/2018 and Circular No.
56/2018 as per the calculation to be made as
prescribed under Rule 89 of the CGST Rules,
2017. The petitioner company therefore, was
eligible for refund of Rs.22,78,798/- as
under:
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Sr. No. Particulars Amount
1 Turnover for inverted 60,700,548
duty tax structure
2 Net ITC (Total ITC Less 5,608,070 (However
ITC availed on Input this figure has
Services) Inverted duty been auto captured
tax structure as Rs.47,56,539/-)
3 Adjusted total turnover 64,061,743
4 Liability on Inverted 3,035,027
tax duty tax structure
14. However, in view of reversal of the
wrongly claimed credit on capital goods, the
amount of the refund claimed by the
petitioners was proportionately reduced by
Rs. 8,06,852/- in view of the calculation
made by the GST Portal.
15. Petitioner no.1 company therefore, by e-
mail dated 14.06.2019 raised a query before
the CBIC Mitra Helpdesk which was finally
resolved by e-mail dated 19.06.2020 wherein
the petitioner no.1 Company was asked to file
the refund under "any other" category instead
of "refund of unutilized ITC on account of
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accumulation due to inverted tax structure"
in FORM GST RFD-01A. It was also informed to
the petitioner company that second
application for refund should relate to the
same tax period in which such reversal has
been made.
16. The petitioner company thereafter filed
second refund application in FORM GST RFD-01A
seeking refund on account of ITC accumulated
due to Inverted Tax Structure and
acknowledgment was generated on 21.06.2019.
However due to the fact that the petitioner
no.1 Company had reversed the credit on
capital goods, which they had wrongly claimed
earlier, the amount of refund got reduced in
GSTR-3B and in FORM GST RFD-01A, as FORM GST
RFD-01A is automated and captures figures
directly from other Forms filed by the
petitioners on GST portal. Accordingly, the
petitioner Company was allowed to file refund
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amounting to Rs.14,71,946/-. Therefore,
petitioner company relying on clarification
provided by circular no. 94/2019 dated
28.03.2019 claimed the balance amount of
refund of Rs. 8,06,852/-i.e. [Rs. 22,78,798/-
(-) Rs. 14,71,946/-) under the head "any
other Specify" and second refund application
for the Month of August 2018 was filed on
08.08.2019.
17. The petitioner company received refund
of Rs. 14,71,946/- as per the refund
application filed on 21.06.2019 but however
while processing refund application filed on
08.08.2019 under the head " Any Other head
(Please Specify)", the respondent authority
issued a show cause notice dated 03.09.2019
proposing to disallow the refund of Rs.
8,06,852/- the on following grounds:
"(i) As per circular no. 94/13/2019-GST
dated 28.03.2019, there is no provision
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that second refund application can be
filled for the same particular month Le.
August 2018 under which appellant filed
refund claim under the category "Any
Other Specify" in inverted rate of
structure;
(ii) For the refund application filled,
calculation should be as per Rule 89(5):
(iii) The department has never asked to
reverse the ITC on capital goods. The
appellant had reversed the same on his
own."
18. It is the case of the petitioner company
that respondent no.3 Deputy Commissioner
disregarded all the submissions made by the
petitioner Company and rejected the refund
application vide impugned order dated
12.09.2019 on the ground that it is
impermissible under the law to split the
refund claim for a particular month in two
parts and further on the ground that refund
of reversed ITC on capital goods cannot be
claimed as refund.
19. Being aggrieved, the petitioners
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preferred an appeal before the Joint
Commissioner (Appeals) under section 107 of
the GST Act who by impugned order dated
29.09.2020 rejected the appeal. The
petitioners therefore, being aggrieved by the
impugned orders passed by respondent nos.2
and 3 has preferred this petition.
20. Learned advocate Mr. Hiren J. Trivedi
submitted that it is not in dispute that the
petitioners are entitled to refund of ITC as
per Notification No.20/2018 read with
Circular No. 56/2018 under Rule 89 read with
Rule 54(3)(ii) of the CGST Rules, 2017. It
was submitted that the petitioners are
entitled to get refund of ITC as per the
inverted duty tax structure amounting to
Rs.22,78,798/-. However same got
proportionally reduced due to reversal of
input tax credit on the capital goods which
was wrongly claimed by the assessee for the
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year 2017-2018 in the month of August 2018.
It was therefore, submitted that the
respondent authorities could not have
rejected the refund application filed by the
petitioners on 08.08.2019 on the ground that
refund could not have been claimed by filing
second application under the head "Any other"
category as per Circular No.94/2019 dated
28.03.2019. It was submitted that the
findings given by respondent nos. 2 and 3
that reversal of the ITC of Capex Goods in
Form GSTR-3B is binding on the petitioners
and, therefore, the same cannot be claimed as
refund, is contrary to the facts by
misreading Circular No.94/2019 dated
28.03.2019 read with Notification No.20/2018
and Circular No. 56/2018.
21. On the other hand, learned advocates for
the respondents submitted that the
petitioners cannot file second refund
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application for the same month i.e. August,
2018 as the refund application filed by the
petitioners on 21.06.2019 for Rs.14,71,946/-
has already been sanctioned and refund is
paid. It was submitted that the second refund
application filed by the petitioners
amounting to Rs.8,06,852/- dated 08.08.2019
for the month of August, 2018 in "any other"
category was without any calculation and not
as per Rule 89(5) of the CGST Rules, 2017 and
therefore, the respondent authorities have
rightly rejected the same.
22. It was submitted that the petitioner
company had itself reversed ITC of capital
goods in August 2018 amounting to
Rs.10,12,189/- in GSTR-3B which was not
reversed earlier and the same is binding upon
the petitioner company and therefore, the
refund for reversal of ITC on capital goods
cannot now be claimed as refund again due to
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inverted duty tax structure as per section 54
of the GST Act.
23. Having heard learned advocates for the
respective parties, the facts are not in
dispute as narrated hereinabove. Notification
No.5/2017 dated 28.06.2017 provided that no
refund of unutilised tax credit shall be
allowed where the credit has accumulated on
account of rate of tax on inputs being higher
than the rate of tax on the output supplies
of such goods which included woven fabrics
manufactured by the petitioner company.
However, by Notification No.20/2018 dated
26.07.2018 it was provided that Notification
No.5/2017 would not be applicable to the
items stated therein as under:
"In exercise of the powers conferred
by clause (ii) of the proviso to
sub-section (3) of section 54 of the
Central Goods and Services Tax Act,
2017 (12 of 2017), the Central
Government, on the recommendations
of the Council, hereby makes the
following further amendments in the
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notification of the Government of
India in the Ministry of
Finance(Department of Revenue),
No.5/2017-Central Tax (Rate), dated
the 28th June, 2017, published in
the Gazette of India, Extraordinary,
Part II, Section 3, Sub-section (1),
vide number G.S.R.677(E), dated the
28th June, 2017, namely:-
In the said notification, in the
opening paragraph the following
proviso shall be inserted, namely:-
"Provided that,
(i) nothing contained in this
notification shall apply to the
input tax credit accumulated on
supplies received on or after the
1st day of August, 2018, in respect
of goods mentioned at serial numbers
1, 2, 3, 4, 5, 6, 6A, 6B, 6C and 7
of the Table below; and
(ii) in respect of said goods, the
accumulated input tax credit lying
unutilised in balance, after payment
of tax for and upto the month of
July, 2018, on the inward supplies
received up to the 31st day of July
2018, shall lapse."
24. Circular No. 56/2018 dated 24.08.2018
clarified that Notification No.20/2018 would
be effective from first day of August 2018 to
keep the accounting simple and refund of ITC
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for the month of July i.e. on purchases made
on or before 31.07.2018 would lapse. Hence,
as per the working of Rule 89(5) of the CGST
Rules, 2017 the petitioners were entitled to
refund of Rs.22,78,798/- as per Notification
No.20/2018.
25. However, the petitioners also reversed
ITC of Rs.10,12,188/- with regard to wrongly
claimed credit on capital goods in the month
of August, 2018 in Form GSTR-3B.
Accordingly, the refund claim of the
petitioners was automatically reduced by Rs.
8,06,852/-. Accordingly, the petitioners were
allowed to file refund application for
Rs.14,71,946/- by GST Portal on 21.06.2019.
26. The respondent authorities thereafter
issued the clarification by Circular
No.94/2019 dated 28.03.2019, relevant
extract of the circular is as under:
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Sr. Issues Clarification
No.
1 Certain registered persons have a) As a one-time measure to
reversed, through return in resolve this issue, refund
FORM GSTR-3B filed for the of accumulated ITC on
month of August, 2018 or for a account of inverted tax
subsequent month, the structure, for the period(s)
accumulated input tax credit in which there is reversal
(ITC) required to be lapsed in of the ITC required to be
terms of notification lapsed in terms of the said
No.20/2018- Central Tax (Rate) notification, is to be
dated 26.07.2018 read with claimed under the category
circular No.56/30/2018-GST "any other" instead of under
dated 24.08.2018 (hereinafter the category "refund of
referred to as the "said unutilized ITC on account of
notification"). Some of these accumulation due to inverted
registered persons, who have tax structure" in FORM GST
attempted to claim refund of RFD-01A. It is emphasized
accumulated ITC on account of that this application for
inverted tax structure for the refund should relate to the
same period in which the ITC same tax period in which
required to be lapsed in terms such reversal has been made.
of the said notification has
been reversed, are not able to b) The application shall be
claim refund of accumulated ITC accompanied by all
to the extent to which they are statements, declarations,
so eligible. This is because of undertakings and other
a validation check on the documents which statutorily
common portal which prevents are required to be submitted
the value of input tax credit with a "refund claim of
in Statement 1A of FORM GST unutilized ITC on account of
RFD-01A from being higher than accumulation due to inverted
the amount of ITC availed in tax structure". On receiving
FORM GSTR-3B of the relevant the said application, the
period minus the value of ITC proper officer shall himself
reversed in the same period. calculate the refund amount
This results in registered admissible as per rule 89(5)
persons being unable to claim of Central Goods and
the full amount of refund of Services Tax Rules, 2017
accumulated ITC on account of (hereinafter referred to as
inverted tax structure to which "CGST Rules"), in the manner
they might be otherwise detailed in para 3 of
eligible. Circular No.59/33/2018-GST
dated 04.09.2018. After
calculating the admissible
refund amount, as described
What is the solution to this above, and scrutinizing the
problem? application for completeness
and eligibility, if the
proper officer is satisfied
that the whole or any part
of the amount claimed is
payable as refund, he shall
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request the taxpayer, in
writing, to debit the said
amount from his electronic
credit ledger through FORM
GST DRC-03. Once the proof
of such debit is received by
the proper officer, he shall
proceed to issue the refund
order in FORM GSTRFD-06 and
the payment advice in FORM
GST RFD-05.
c) All refund applications
for unutilized ITC on
account of accumulation due
to inverted tax structure
for subsequent tax period(s)
shall be filed in FORM GST
RFD-01A under the category
"refund of unutilized ITC on
account of accumulation due
to inverted tax structure".
27. Relying upon the clarification as per
the aforesaid circular, the petitioners filed
second refund application dated 08.08.2019
claiming refund of Rs. 8,06,852/- which
could not be applied by the petitioners on
account of reversal of the wrongly claimed
credit on capital goods in the month of
August, 2018.
28. The respondent authorities however,
failed to consider that the petitioners were
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entitled to ITC as per inverted duty tax
structure amounting to Rs.22,78,798/- as
calculated under Rule 89 of the GST Rules.
GST Portal did not allow the petitioners to
submit the refund application for the said
amount and restricted the same to
Rs.14,71,946/ in view of reversal of the
credit of Rs.10,12,188/- on account of
wrongly claimed credit on capital goods.
29. The petitioners therefore, had no other
option but to file second application for
claiming balance amount of refund of
Rs. 8,06,852/-. The respondent authorities
have failed to consider that the petitioners
have not filed second refund application for
the same month but it has filed application
for claiming the balance amount of refund
which was not granted though the petitioners
were eligible for the same. The petitioners
had therefore, no other option but to file
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refund application in view of Circular
No.94/2019 dated 28.03.2019 under the head
"any other".
30. The reasons given by the respondent
authorities that refund application filed is
not as per the calculation made in Rule 89(5)
of the CGST Rules is also not correct since
as per the calculation made under Rule 89(5)
which provides for maximum refund amount, the
petitioners are entitled to refund of
Rs.22,78,798/- on the total turnover of
inverted duty tax structure which is not in
dispute and accordingly, the petitioners were
entitled to refund of Rs. 8,06,852/- which
the petitioners could not claim in view of
the fact that GST Portal did not permit the
petitioners to file refund application in
view of the reversal of the wrongly claimed
credit on capital goods.
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31. The respondent authorities have
therefore, adopted a pedantic approach by
rejecting the refund application filed by the
petitioners for balance amount of refund of
Rs. 8,06,852/-.
32. It is also pertinent to note that the
respondent authorities cannot dispute the
claim of the petitioner's eligibility of
refund of Rs.22,78,798/- for the month of
August 2018 calculated as per Notification
No.20/2018 read with Rule 89 of the CGST
Rules, 2017. It is also not in dispute that
the said claim of the petitioners was
restricted to Rs.14,71,946/- by GST Portal in
view of reversal of wrongly claimed credit of
Rs.10,12,188/- on capital goods by the
petitioner company. Therefore, respondent
authorities ought to have taken into
consideration that the petitioners were
eligible for balance amount of refund of
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Rs. 8,06,852/- which could not have been
denied on hyper-technical ground as stated in
the impugned orders. Reasoning given by
respondent no.3 for rejecting the legitimate
claim of the petitioner company that reversal
of ITC on capital goods in Form GSTR-3B
amounting to Rs.10,12,189/- is binding on the
petitioner company and therefore, the
petitioner company is not eligible for claim
of refund as per Circular No.94/2019 dated
28.03.2019 cannot be accepted. Circular
No.94/2019 permited a one time measure for
availing refund of ITC on account of inverted
duty tax structure as per Notification
No.20/2018 read with Circular No.56/2018 as
the assessees were not able to claim refund
of the accumulated ITC to the extent to which
they were eligbile. Therefore, it was
clarified by Circular No. 94/2019 that when
the assessee was not eligible to claim the
refund then ITC is required to be claimed
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under the category "any other" instead of
under the category "refund of unutilized ITC
on account of accumulation due to inverted
tax structure" in FORM GST RFD-01A for the
same tax period in which said reversal has
been made. The petitioners taking benefit of
such circular preferred Second refund
application dated 08.08.2019 for balance
amount of ITC on account of accumulated
inverted duty tax structure amounting to
Rs. 8,06,852/-. Thus the respondent
authorities have by adopting such a pedantic
approach could not have rejected the
legitimate claim of the petitioner company
for balance amount of refund claim.
33. In view of the forgoing reasons, the
petition succeeds and is accordingly allowed.
The impugned order dated 12.09.2019 passed by
respondent no.3 and confirmed by respondent
no.2 vide order dated 29.09.2020 are hereby
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quashed and set aside. The respondent
authorities are directed to sanction the
refund of Rs. 8,06,852/- as per the refund
application filed by the petitioners on
08.08.2019 within a period of six weeks from
the date of receipt of a copy of this order
along with applicable rate of interest in
accordance with law.
34. Petition is accordingly disposed of.
Rule is made absolute to the aforesaid
extent. No order as to costs.
(BIREN VAISHNAV, J)
(BHARGAV D. KARIA, J)
RAGHUNATH R NAIR
