Page 49 - GSTL_2nd July 2020 _Vol 38_Part 1

2020 ] DENYING GST REFUND OF ITC NOT REFLECTED IN GSTR-2A — WHETHER VALID? J23
29-12-2017 [2018 (8) G.S.T.L. C3] to the extent that it restricts the rec-
tification of Form GSTR-3B in respect of the period in which the er-
ror has occurred
• Circular is not binding on a Court and assessee. Reliance is placed
on Commissioner v. Avenue Impex - 2014 (306) E.L.T. 69 (Mad.).
Conclusion
In view of the above, the clarification issued through Para 5 of Circular
No. 135 is not correct. If any person is deprived of the refund because of this cir-
cular he should challenge it in the HC and seek to quash. Further, the circular
was issued in the context of the amendment made in October, 2019 thereby the
ITC availed before that should be granted without insisting for the invoice re-
flected in GSTR-2A. However, in practice, the department is applying the clarifi-
cation for the sanction of the refunds for the period before October, 2019, which
is again not in line with the law.
Denial of the refund (to the extent of unmatched ITC) is causing the
hardship to the exporters who are already badly hit by the COVID-19 crisis.
Hence, the C.B.I. & C. should withdraw the Para 5 of the circular or at least modi-
fy it to allow the refund of ITC when invoices are available without insisting on
matching.
_______

[Continued from page J16]

Our legal system preserves its heritage in the form of precedent, and
conventions so that it and its successors in their day-to-day functioning may take
guidance from the past working of their predecessors and may not divert from
the well-established practice resulting in discrimination, harassment and incon-
venience to the citizen. Article 14 of the Constitution of India guarantees equal
protection of law to the citizens (AIR 1974 SC 1069). It contemplates the uni-
formity of law and tends towards maintenance of fixed legal system. The certain-
ty of law is the safety of citizen and therefore, the law should not differ from man
to man, from time to time and from town to town in its application because of
different interpretations put forth by different authorities.
As per the opinion of the author, the credit accrued or acquired in the
pre-GST regime is a vested and substantive right. The right in respect of the cred-
it become absolute at that point when the input/input services were used in the
manufacturing of the final product. Therefore, right of availment of Cenvat credit
does not lapse merely because it was not declared in Return of June, 2017 which
was a procedural requirement.
In the above circumstances, it would be in the interest of all the
assessees, if the Central Board of Indirect Tax & Customs issues guidelines after
considering all the other relevant factors and make a honest positive attempt to
facilitate the claim of missed out Cenvat credit rather than curbing them by plac-
ing conditions and restrictions which prima facie does not seem legally tenable.
_______
GST LAW TIMES  2nd July 2020  49