Madras High Court
Modern India Products vs The Assistant Commissioner Of ... on 17 April, 2021
W.P.(MD)No.9796 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 17.04.2021
CORAM
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
W.P.(MD)No.9796 of 2020
Modern India Products,
Represented by its Managing Partner
S.Uma Maheswaran,
314, Thiruvalluvar Street,
Rajapalaym,
Tamil Nadu – 626 117. Petitioner
Vs.
1.The Assistant Commissioner of Customs,
Custom House, IGST Section,
Tuticorin Sea Port, Tamilnadu.
2.Union of India,
(Through the Minister of Finance),
Ministry of Finance,
Parliament Street, Central Secretariat,
North Block,
New Delihi – 110 001. Respondents
PRAYER: Writ petition filed under Article 226 of the Constitution of
India, to issue a Writ of Mandamus, to direct the respondent herein to
consider the representation dated 28.06.2018 & 18.07.2019 filed by the
petitioners immediately and sanction the refund of IGST of Rs.2,54,449/-
paid by the petitioner in respect of the goods exported ie 'Zero Rated
Supplies' made vide shipping bills mentioned hereinabove along with
entitled interest @ 9% to the petitioner, till the date of actual refund.
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W.P.(MD)No.9796 of 2020
For Petitioner : Mr.S.Karunakar
For Respondents : Mr.S.Jeyasingh
ORDER
This Writ Petition has been filed by the petitioner to direct the
respondent herein to sanction the refund of IGST of Rs.2,54,449/- paid
by the petitioner in respect of the exported goods.
2. Though the Writ Petition has been filed on 17.08.2020 and
though adjournment has been granted for filing counter affidavit, no
counter affidavit has been filed till date.
3. The petitioner is a proprietor of M/s. Modern India Products,
who is a merchant exporter having Goods and Service Tax registration
No.33ABAFM6278M1ZW. It is stated that as provided in Rule 96 of the
CGST Rules, 2017, the shipping bill filed by an exporter of goods shall
be deemed to be an application for refund of integrated tax paid on the
goods exported out of India and such application shall be deemed to have
been filed only when the person in charge of conveyance carrying the
export goods duly files and export manifest or an export report covering
the number and the date of shipping bills or bills of export and the
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W.P.(MD)No.9796 of 2020
applicant has furnished a valid return in Form -GSTR-3 or Form
GSTR-3B. Accordingly, the petitioners have for the purpose of exporting
goods out of India issued Commercial Invoice and Export Invoice. The
goods were exported through Tuticorin Port and Shipping Bills, Export
General Manifest and Bill of Lading were also generated. It is further
submitted that as provided in Section 54 of CGST Act, 2017, read with
Section 16 of IGST Act, 2017, immediately after the goods are exported,
considering the shipping bills as application for refund of IGST paid in
regard to the export goods, the respondent authorities are supposed to
refund the said amount of IGST to the petitioner immediately. The
grievance of the petitioner is that exports were made in September 2017,
but till date, IGST is not refunded to the petitioner. Hence, this Writ
Petition.
4.The learned counsel for the petitioner relied on a judgment
stating that the issue involved in this Writ Petition is covered by the
orders of various Courts across the Country. More particularly, he relied
on the order of this Court in 2020(1) TMI 90 – Madras High Court,
M/s. Precot Meridian Limited Vs.The Commissioner of Customs, The
Assistant Commissioner of Customs in W.P.(MD) No.20504 of 2019,
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W.P.(MD)No.9796 of 2020
dated 19.11.2019 and the relevant portion is extracted as under:-
“9.It is not in dispute that the petitioner exported
cotton through seven shipping bills and paid a
sum of Rs.4,80,355/- towards IGST. It is also not
in dispute that the statute provides for refund of
IGST on export of materials. The only condition is
that if the export is made after payment of tax, he
is entitled to get refund. According to the
petitioner, he has complied with the requirements
of Sub-Clauses (a) and (b) of Sub-Rule (1) of rule
96 of CGST Rules, 2017. Accordingly, he is
entitled for refund and it cannot be ignored by
citing the circular.
10.The Hon'ble Supreme Court, in a similar
circumstance, in the case of Commissioner of
Central Excise, Bolpur Vs.Ratan Melting and Wire
Industries [2008(12) S.T.R.416 (S.C)] has held as
follows:-
'6.Circulars and instructions issued by
the Board are no doubt binding in law on the
authorities under the respective statutes, but when
the SupremeCourt or the High Court declares the
law on the question arising for consideration, it
would not be appropriate for the Court to direct
that the circular should be given effect to and not
the view expressed in a decision of this Court or
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W.P.(MD)No.9796 of 2020
the High Court. So far as the
clarifications/circulars issued by the Central
Government and of the state Government are
concerned they represent merely their
understanding of the statutory provisions. They
are not binding upon the Court. It is for the Court
to declar what the particular provision of statute
says and it is not for the Executive. Looked at from
another angle, a circular which is contrary to the
statutory provisions has really no existence in law'
...
12.When the above circular was dealt with by the
Hon'ble Divison Bench of Gujarat High Court at
Ahmedabad in M/s.Amit Cotton Industries through
partner, Velijibhai Virjibhai Ranipa vs.Principal
Commissioner of Customs, in R/SpecialCivil
Application No.20126 of 2018, dated 27.06.2019,
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 herein. Ther respondents have already
apssed 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.
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W.P.(MD)No.9796 of 2020
13.In view of the above discussion, the
respondents are directed to refund the amount of
Rs.4,80,355/- of IGST paid by the petitioner for
the goods exported form India which are zero
rated supplies, within a period of six weeks from
the date of receipt of a copy of this order.”
5.Therefore, the above judgment is squarely applicable to the
present factual circumstances of the case. In the light of the above, the
Writ Petition stands allowed. The first respondent herein is directed to
sanction the refund of IGST of Rs.2,54,449/- paid by the petitioner in
respect of the goods exported i.e 'Zero Rated Supplies' made vide
shipping bills mentioned herein above along with entitled interest @ 9%
to the petitioner till the date of actual refund, within a period of six
weeks from the date of receipt of a copy of this order. No costs.
17.04.2021
vrn
Note:
In view of the present lock down owing to COVID-19 pandemic, a web
copy of the order may be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.
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W.P.(MD)No.9796 of 2020
To
1.The Assistant Commissioner of Customs,
Custom House, IGST Section,
Tuticorin Sea Port, Tamilnadu.
2.Union of India,
(Through the Minister of Finance),
Ministry of Finance,
Parliament Street, Central Secretariat,
North Block,
New Delihi – 110 001.
https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.9796 of 2020
J.NISHA BANU, J.
vrn
Order made in
W.P.(MD)No.9796 of 2020
17.04.2021
https://www.mhc.tn.gov.in/judis/
