IMPORTANT POINT
The court established that for continuous supply of goods, the REA from the previous month is valid for refund applications in the succeeding month under the CGST Act.

JUDGMENT :

(Per Hon’ble Sri Justice R Raghunandan Rao)

M/s. SEIL Energy India Limited is the petitioner in all these writ petitions. As the same issue is raised in all these writ petitions, they are being disposed of, by way of this common order.

2. Heard Sri Raghavan Ramabadran, learned counsel appearing on behalf of Sri Lakshmi Kumaran Sridharan, learned counsel for the petitioner and Sri Y.N. Vivekananda, learned counsel for the respondents.

3. The petitioner generates electrical power and sells the same to its customers. For the period January 2022 to October 2022, the petitioner had been selling/supplying electricity to M/s. Bangladesh Power Development Board. The petitioner, contending that such supply of electricity would amount to an export sale, which is exempted from tax under the Integrated Goods and Services Tax Act, 2017 (herein referred to as “IGST Act”), had sought refund of the input tax credits available to the petitioner for these months.

4. The petitioner had filed separate applications for refund, for each month for the period January 2022 to October 2022. These applications were not accepted on the ground that the petitioner had not filed the bill of shipping for supply of electricity. This issue was raised by way of a show cause notice by the respondents. By this time, earlier orders of rejection, on the same ground, had been challenged before this Court by way of W.P.No.11194 of 2021 and batch. The contention raised by the petitioner, in those Writ Petitions, was that electricity is an intangible and the question of obtaining the bill of shipping for such intangibles cannot arise. While these cases were pending, there was an amendment to Rule 89 of the Central Goods and Services Tax Rules, 2017 (herein referred to as “CGST Rules”) substituting the requirement of producing the bill of shipping with the requirement of furnishing the Regional Energy Account (herein referred to as “REA”) maintained by the concerned Regional Load Dispatch Center, as proof of export, even if the bill of shipping is not produced.

5. The question of whether such amendment to the Rule is prospective or retrospective had remained and the same was answered in a Judgment dated 26.08.2022 passed by a Hon’ble Division Bench of this Court in W.P.No.11194 of 2021 and batch. This Court had taken the view that the said amendment should be treated as retrospective and the benefit of the amended Rule would be available to the petitioner.

6. The 2nd respondent, who had earlier issued a show cause notice requiring the production of bill of shipping, amended the said notice and called upon the petitioner to produce the REA account maintained by the Regional Load Dispatch Center for processing the applications. Consequently, the petitioner produced the said REA account for the periods January 2022 to October 2022. However, these applications were rejected by the 2nd respondent by various orders. The 2nd respondent took the view that Rule 89 of the CGST Rules requires the dealer to place necessary materials such as input tax credit, turnover of zero rated supply of goods, adjusted total turnover, etc. for the “relevant period”. He also took the view that the relevant period would be the month for which the refund is sought. The 2nd respondent noticed that the petitioner, while applying for refund for the month of January 2022 was filing the REA for the month of December 2021 and so on.

7. The petitioner being aggrieved by the said orders of rejection had filed appeals, in some of these cases, before the 3rd respondent, who had dismissed the appeals accepting the contention of the 2nd respondent. The petitioner had filed appeals in W.P.Nos.15410, 15387 & 15416 of 2023 and has approached this Court directly against the orders in original in the remaining writ petitions.

8. Sri Raghavan Ramabadran, learned counsel appearing for the petitioner contends that the view taken by the Primary Authority and the Appellate Authority is incorrect. He would take us to