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2022 Supreme(Online)(MAD) 6034
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved On 08.02.2022 Pronounced On 08.04.2022 CORAM THE HON'BLE MR.JUSTICE C.SARAVANAN W.P.(MD) No.20468 of 2021 Numinous Impex (I) Pvt. Ltd.
Represented by its Managing Director, S.Sureshkumar
1, Chaitram, SNV Garden, Nanjundapuram Post, Coimbatore-641 036. ... Petitioner Vs.
1.The Commissioner of Customs, Customs House, Near Harbor Estate, Tuticorin-628 004.
2.The Assistant Commissioner of Customs-(Drawback), Customs House, Near Harbor Estate, Tuticorin-628 004. ... Respondents Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Manadamus, to direct the respondents to settle the pending refund of IGST amount paid on the shipping bill numbers 7695398, dated 29.07.2017, 7878488, dated 08.08.2017, 8774535, dated
20.09.2017 and 8774537, dated 20.09.2017 with accrued interest at 7% from the date on which a request for refund is made till the date of payment within a stipulated time that may be fixed by this Court.
For Petitioner : Mr.Henri Tiphagne For Respondents : Mr.B.Vijaya Karthikeyan Senior Standing Counsel
O R D E R
Heard the learned counsel on either side and perused the communication exchanged between the petitioner and the respondents and copies of Notification No.131 of 2016-Cus(N.T), dated 31.10.2016 as amended by Notification No.73 of 2017-Cus (N.T), dated 26.07.2017, Circular No.37 of 2018-Cus, dated -09.10.2018.
2. I have also perused the communication filed by the learned Senior Standing Counsel for the respondents, dated 14.12.2021 from the legal Section of the respondents, wherein, it has been stated as follows:-
“It is further submitted that the petitioner has obtained drawback @ 2% in the present case. In as much as the petitioner, in his impugned shipping bills, have claimed drawback under sl.code A, it is deemed that they have availed higher drawback, irrespective of the fact that both the rates prescribed under A and B are equal.
It is further submitted that the drawback and IGST refund is entirely automated and there is no manual intervention of any kind is possible.”
3. This Writ Petition has been filed for a direction to the respondents to settle the pending refund claims of the petitioner on the exports made under following shipping bills:-
| Shipping Bill No. | SB Date | IGST Status in SB | Draw back Serial Code | Draw back % under Cat A | Draw back % under Cat B | IGST Amount paid in INR |
| 7695398 | 29/07/2017 | NA | 8483A | 2% | 2% | 6,19,878.00 |
| 7878488 | 08/08/2017 | NA | 8483A | 2% | 2% | 5,06,358.00 |
| 8774535 | 20/09/2017 | NA | 8483A | 2% | 2% | 6,04,650.00 |
| 8774537 | 20/09/2017 | NA | 8413A | 2% | 2% | 87,698.00 |
| 18,18,584.00 |
4. The petitioner had exported consignments of goods classifiable under Customs Heading No.8483-40-00 of the Customs Tariff Act 1975 and claimed duty drawback under Section 75 of the Customs Act, 1962. Additionally, the petitioner claimed refund of input tax credit availed on the input and input services used in the export goods.
5. It is the case of the petitioner that the exports effected by the petitioner are "zero rated supply" within the meaning of Section 16 of the Integrated Goods and Services Tax Act, 2017 and therefore, the petitioner is entitled to refund of unutilized input tax credit under Section
16(3)(a) of the Integrated Goods and Services Tax Act, 2017.
6. Since on the same export, the petitioner has claimed duty drawback under the provisions of Customs and Central Excise Duties and Service Tax Drawback Rules, 2017 r/w relevant Notification issued under Section 75 of the Customs Act, 1962, the refund of unutilized input tax credit under Section 16(3)(a) of the Integrated Goods and Services Tax Act, 2017 is being denied.
7. The point for consideration in the present writ petition is “whether exports made without payment of IGST under bond on which, duty drawback is claimed under the provisions of the Customs and Central Excise Duties and Service Tax Drawback Rules, 2017, (formerly 1995) would entitle such an exporter, the benefit of refund of input tax credit under sub-Section (3) of Rule 16 of the IGST Act 2017 r/w 54 of the CGST Act, 2017 read with the Rules made thereunder?".
8. When the goods were exported by the petitioner, the Central Excise Act, 1944, Rules made thereunder, Chapter V of the Finance Act, 1994 containing the provisions of Service Tax, Rules made thereunder and other Indirect Taxes had been repealed and subsumed into the provisions of the Goods and Services Tax enactments with effect from 01.07.2017. Corresponding changes in the Customs Notifications were not fully made.
9. As far as the duty drawbacks are concerned, they are governed by Section 75 of the Customs Act, 1962 and Notification issued thereunder. Exports made by the petitioner were immediately after the respective Goods and Service Tax enactments came into force.
10. During the period in dispute when the exports were made, the petitioner has claimed duty drawback under Section 75 of the Customs Act, 1962 read with Notification No.131/2016-Cus (N.T) dated 31.10.2016 as amended by Notification No.73/2017-Cus (N.T), dated 26.07.2
