Page 46 - GSTL_23rd April 2020_Vol 35_Part 4

372 GST LAW TIMES [ Vol. 35
the relevant date in such form and manner as may be prescribed. If, on re-
ceipt of any such application, the proper officer is satisfied that the whole or
part of the amount claimed as refund is refundable, he may make an order
accordingly and the amount so determined will have to be credited to the
Fund referred to in Section 57 of the CGST Act, 2017.
26. Rule 96 of the CGST Rules provides for a deeming fiction. The ship-
ping bill that the exporter of goods may file is deemed to be an application
for refund of the integrated tax paid on the goods exported out of India.
Section 54 referred to above should be read along with Rule 96 of the Rules.
Rule 96(4) makes it abundantly clear that the claim for refund can be with-
held only in two circumstances as provided in sub-clauses (a) and (b) re-
spectively of clause (4) of Rule 96 of the Rules, 2017.
27. In the aforesaid context, the respondents have fairly conceded that the
case of the writ-applicant is not falling within sub-clauses (a) and (b) re-
spectively of clause (4) of Rule 96 of the Rules, 2017. The stance of the de-
partment is that, as the writ-applicant had availed higher duty drawback
and as there is no provision for accepting the refund of such higher duty
drawback, the writ-applicant is not entitled to seek the refund of the IGST
paid in connection with the goods exported, i.e. ‘zero-rated supplies’.
28. If the claim of the writ-applicant is to be rejected only on the basis of
the circular issued by the Government of India dated 9th October, 2018 re-
ferred to above, then we are afraid the submission canvassed on behalf of
the respondents should fail as the same is not sustainable in law.
29. We are not impressed by the stance of the respondents that although
the writ-applicant might have returned the differential drawback amount,
yet as there is no option available in the system to consider the claim, the
writ-applicant is not entitled to the refund of the IGST. First, the circular
upon which reliance has been placed, in our opinion, cannot be said to have
any legal force. The circular cannot run contrary to the statutory rules, more
particularly, Rule 96 referred to above.
30. Rule 96 is relevant for two purposes. The shipping bill that the export-
er may file is deemed to be an application for refund of the integrated tax
paid on the goods exported out of India and the claim for refund can be
withheld only in the following contingencies :
(a) a request has been received from the jurisdictional Commis-
sioner of central tax, State tax or Union territory tax to with-
hold 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.
31. Mr. Trivedi invited our attention to two decisions of the Supreme
Court as regards the binding nature of the circulars and instructions issued
by the Central Government.
32. In the case of Commissioner of Central Excise, Bolpur v. Ratan Melting and
Wire Industries, reported in 2008 (12) S.T.R. 416 (S.C.), the Supreme Court
observed as under :
“4. Learned Counsel for the Union of India submitted that the law
declared by this Court is supreme law of the land under Article 141 of

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