Page 177 - GSTL_11th June 2020_Vol 37_Part 2

2020 ] IN RE : DILEEP POTTERIES PVT. LTD. 263
for the refund under sub-section (3) of Section 54 of the CGST Act, 2017 of unu-
tilized ITC for the period mentioned above in Para 1 of the above Table in col-
umn No. 5 on the zero-rated supplies made under Section 16 of the IGST Act,
2017 vide Form RFD-01A.
3. The above mentioned amounts of refunds mentioned above in Para 1
of the above Table in Column No. 6 were rejected on the ground that the appel-
lant has claimed higher drawback under column A of drawback schedule and
also refund of credit found inadmissible under Section 17(5) of CGST Act, 2017.
Being aggrieved with the above impugned orders, the appellant have filed ap-
peals mainly on the following grounds which are summarized as under :-
(i) That sub-section (3) of Section 54 of the CGST Act, 2017 is being re-
produced :
(3) Subject to the provisions of sub-section (10), a registered per-
son may claim refund of any unutilised input tax credit at the end
of any tax period :
Provided that no refund of unutilised input tax credit shall be al-
lowed in cases other than -
(i) zero rated supplies made without payment of tax;
(ii) where the credit has accumulated on account of rate of tax on
inputs being higher than the rate of tax on output supplies
(other than nil rated or fully exempt supplies), except supplies
of goods or services or both as may be notified by the Gov-
ernment on the recommendations of the Council :
Provided further that no refund of unutilised input tax credit shall
be allowed in cases where the goods exported out of India are sub-
jected to export duty :
Provided also that no refund of input tax credit shall be allowed, if the
supplier of goods or services or both avails of drawback in respect of central
tax or claims refund of the integrated tax paid on such supplies.
(ii) That the second proviso to Section 54(3) provides that the refund of
input tax credit shall not be allowed where the supplier avails the
drawback in respect of central tax or claims refund on integrated tax
on such supplies, It is therefore a clear position in the CGST Act and
consequently in IGST Act that a supplier availing the drawback of
central tax may not be eligible to claim refund of accumulated ITC
under the CGST Act and there is no dispute in it.
(iii) That on the contrary, the refund claim of the appellant has been re-
jected primarily on the ground of claiming the higher rate of draw-
back under Column A of the drawback schedule. The said conten-
tion is faulty.
(iv) That Circular No. 22/2017-Cus., dated 30-6-2017 provides for the
amendments effective from 1-7-2017 to All Industry Rates of Duty
Drawback and other Drawback related changes provides that
Transition period :
In order to ensure smooth transition to the GST regime, Govern-
ment has allowed the extant Duty Drawback scheme to continue for
a period of three months i.e. from 1-7-2017 to 30-9-2017. The export-
er 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. During the transition period, export-
GST LAW TIMES  11th June 2020  177