JUDGMENT

Ms. Ritu Bahri, J. (Oral)

M/s Silver line Chemicals-petitioner is seeking a writ in the nature of mandamus directing the respondents to sanction refund of the IGST paid with regard to the goods exported i.e. 'zero rated supplies', made vide shipping bill Nos.7229240 and 7451382 dated 08.07.2017 and 19.07.2017 respectively.

2. The petitioner is registered with the Ministry of Commerce and in this regard, certificate of Importer-Exporter Code (IEC) dated 29.08.2003 (Annexure P-1) has been issued by the Assistant Director General of Foreign Trade. The petitioner has also placed on record copy of the GST Registration Certificate (Annexure P-2) to show that the company is registered with the Goods and Service Tax Authorities. Copies of the shipping bills and air way bills have been attached as Annexure P-3. As per petitioner, the goods were exported to Iran and IGST with regard to those goods was paid. After the goods were exported, as per Section 54 of the CGST Act, 2017, read with Section 16 of the IGST Act, the petitioner made an application for refund of IGST paid with regard to the export goods. Further, on the request/complaint made by the petitioner, a correction was made in the bills and the amount of IGST paid by it (petitioner) was corrected as Rs.2,01,423.31/- for shipping bill No.7229240 dated 08.07.2017 and Rs.2,47,486/- for shipping bill No.7451382 dated 19.07.2017. However, the refund of IGST paid was rejected due to drawback in Part 'A' taken by the petitioner.

3. Learned counsel for the petitioner has argued that as per Rule 96 (4) of the CGST Rules, 2017, claim of the refund can only be withheld on two eventualities, which are as under:-

"(a). A request has been received from the jurisdictional Commissioner of Central tax, State tax or Union Territory tax to withhold the payment of refund due to the person claiming refund in accordance with the provisions of sub-section (10) or sub-section (11) of Section 54; or

(b) the proper officer of Customs determines that the goods were exported in violation of the provisions of the Customs Act, 1962."

4. Learned counsel for the petitioner further argued that case of the petitioner does not fall under any of the aforesaid eventualities. Claiming drawback is no ground for withholding the refund of IGST amount paid in respect of goods exported.

5. Upon notice, reply on behalf of respondent Nos.1 to 3 has been filed, wherein they have justified the rejection of the refund of IGST by referring to the Central Board of Indirect Taxes and Customs (CBIC/Board) Circular No.22/2017-Customs dated 30.06.2017 (Annexure R-1), wherein it has been clarified that during the transition period from 01.07.2017 to 30.09.2017, the exporter may, for exports made during this period, continue to claim the composite rates i.e. rates and caps given under columns (4) and (5) respectively of the Schedule of AIRs of duty drawback, subject to certain additional conditions. In respect of such cases, where IGST refunds have not been granted due to claiming higher rate of drawback or where higher rate and lower rate were identical, another Circular bearing No.37/2018- Customs dated 09.10.2018 (Annexure R-2) has been issued. After considering various representations from the exporter/export associations and extensively examining the matter, the Board has observed as follows:

"......the legal provisions related to Drawback claims are as under: Notes and condition (11) No.131/2016-Cus(NT) dated 31.10.2016 (as amended by Not f. No.59/2017-Cus (NT) dated 29.06.2017), under which All Industry Rates of Drawback had been notified and which were applicable for availing c