Page 124 - GSTL_2nd April 2020_Vol 35_Part 1

26 GST LAW TIMES [ Vol. 35
He argues that Petitioners opted for the drawback claim under column A inad-
vertently, as a mere technical glitch, due to confusion prevailing during the tran-
sitional phase. He submits that Respondents have failed to address their griev-
ances, not withholding numerous representations made to them and now they
are constrained to approach this Court.
8. Respondent No. 2 in its counter affidavit has submitted that duty
drawback scheme and zero rating of export under GST are mutually exclusive
schemes for neutralization of separate input taxes on exported goods. It is further
submitted that a clear and unambiguous option was provided to the exporters to
either claim AIRs under Column A or claim tax neutralization under GST legisla-
tion and the Petitioners went with the former option and they cannot now turn
around and claim benefit of the provision that was not availed in the first in-
stance.
9. In rejoinder, Petitioners submitted that simultaneous availment of
drawback of custom portion and refund of IGST paid on export of goods did not
in any way lead to double neutralization of input taxes since custom duty was
neutralized through drawback of custom portion and, IGST paid on export of
goods was neutralized through refund of IGST paid on export of goods. It was
reiterated that denial of IGST refund can only be done under Rule 96(4) of the
CGST Rules, 2017 and that the present circumstances does not attract the condi-
tions laid down under the said rule. The Petitioners have relied upon Circular
No. 8/2018-Cus., dated 23-3-2018 to demonstrate that in the past the Govern-
ment has provided remedies to deal with inadvertent errors committed by simi-
larly situated parties. They cannot now turn around and claim to the contrary.
10. Reliance was placed upon the decision of the Gujarat High Court in
M/s. Amit Cotton Industries v. Principal Commissioner of Customs, SCA No. 20126 of
2018 [2019 (23) G.S.T.L. 463 (Guj.)] wherein the petitioner was denied IGST re-
fund on the ground that drawback was claimed at 1% and the High Court agreed
with the petitioner’s contention that the Circular dated 9-10-2018 has nothing to
do with the IGST refund and the denial of IGST refund is to only be done in ac-
cordance with Rule 96 of the CGST Rules.
11. Petitioners have also relied upon the decision of the Madras High
Court (Madurai Bench) in M/s. VSG Exports Pvt. Ltd. v. The Commissioner of Cus-
toms, Tuticorin and Ors., W.P. (MD). No. 24793 of 2018 and W.M.P. (MD) No.
22481 of 2018 [2019 (28) G.S.T.L. 421 (Mad.)] wherein the petitioner had exported
goods on the payment of IGST but, the refund was denied to them on the ground
that they had availed drawback under the higher rate. The petitioner contended
that drawback rate provided was identical in Column 4 and Column 6 and this
merely pertains to custom component. The High Court held that the Circular
dated 9-10-2018 would not be applicable to the petitioner’s case as the drawback
at a higher rate was not availed by the petitioner and the earlier Circular dated
23-3-2018 which provided for an alternative mechanism to process IGST refund
in case of an inadvertent error would be applicable in the present case.
12. The Petitioners also relied upon G Nxt Power Corp and Ors. v. Union
of India and Ors. [2019 (29) G.S.T.L. 616 (Ker.)] of the Kerala High Court where the
petitioner had been granted drawback of Central Excise component and was de-
nied IGST paid as cash. The Court directed the respondents to adjust the amount

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