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M/s. Chaizup Beverages LLP, Represented by its Authorized Representative, Shiv Kumar Agarwal v/s The Assistant Commissioner, Coimbatore I Division, Coimbatore & Another


Company & Directors' Information:- S V CORPORATION LLP [Active] CIN = AAQ-7877

Company & Directors' Information:- U I BEVERAGES PRIVATE LIMITED [Active] CIN = U15549PB2013PTC038092

Company & Directors' Information:- S. S. BEVERAGES PRIVATE LIMITED [Active] CIN = U15122DL2014PTC265842

Company & Directors' Information:- AGARWAL & AGARWAL PVT LTD [Active] CIN = U27106WB1950PTC026266

Company & Directors' Information:- AGARWAL & AGARWAL PVT LTD [Active] CIN = U27106DL1950PTC332098

Company & Directors' Information:- S & J BEVERAGES PRIVATE LIMITED [Active] CIN = U15500DL2010PTC207500

Company & Directors' Information:- G R KUMAR & CO LLP [Active] CIN = AAC-1150

Company & Directors' Information:- A P T AND CO LLP [] CIN = AAL-8025

Company & Directors' Information:- R D N A AND CO LLP [Active] CIN = AAM-4183

Company & Directors' Information:- K. R. BEVERAGES PRIVATE LIMITED [Active] CIN = U15132WB1998PTC086449

Company & Directors' Information:- K D BEVERAGES PRIVATE LIMITED [Amalgamated] CIN = U15511AS2002PTC006870

Company & Directors' Information:- S D BEVERAGES PRIVATE LIMITED [Active] CIN = U15549CH2007PTC030975

Company & Directors' Information:- C A P A (INDIA) LLP [] CIN = AAF-9325

Company & Directors' Information:- M. B. BEVERAGES (INDIA) LIMITED [Active] CIN = U65921UP1997PLC022974

Company & Directors' Information:- S KUMAR AND COMPANY LLP [] CIN = AAF-9897

Company & Directors' Information:- G. H. BEVERAGES PRIVATE LIMITED [Active] CIN = U15500MP2010PTC023108

Company & Directors' Information:- AGARWAL CO LTD [Active] CIN = U74140WB1950PLC018969

Company & Directors' Information:- K K BEVERAGES PRIVATE LIMITED [Active] CIN = U15543ML1997PTC005018

Company & Directors' Information:- M D S & CO LLP [] CIN = AAF-2760

Company & Directors' Information:- A A A M & CO LLP [Active] CIN = AAT-1669

Company & Directors' Information:- J D BEVERAGES PRIVATE LIMITED [Active] CIN = U15543KA2011PTC056464

Company & Directors' Information:- R C A AND CO LLP [Active] CIN = AAU-3441

Company & Directors' Information:- D B Y & CO LLP [] CIN = AAF-3364

Company & Directors' Information:- V & V BEVERAGES PRIVATE LIMITED [Active] CIN = U15543DL2005PTC138933

Company & Directors' Information:- A Q BEVERAGES PRIVATE LIMITED [Active] CIN = U15400JH2020PTC015764

Company & Directors' Information:- A D AGARWAL & CO LLP [] CIN = AAF-3047

Company & Directors' Information:- C A N V A S & CO LLP [] CIN = AAG-1661

Company & Directors' Information:- E I U INDIA LLP [] CIN = AAG-0189

Company & Directors' Information:- S S S R & COMPANY LLP [Active] CIN = AAS-6238

Company & Directors' Information:- P V BEVERAGES PRIVATE LIMITED [Active] CIN = U74899DL2005PTC141738

Company & Directors' Information:- AGARWAL BEVERAGES PRIVATE LIMITED [Active] CIN = U15549GJ1998PTC035085

Company & Directors' Information:- A B BEVERAGES (INDIA) PVT LTD [Strike Off] CIN = U15549WB1988PTC045423

Company & Directors' Information:- A D BEVERAGES PRIVATE LIMITED [Strike Off] CIN = U15549WB1998PTC086886

Company & Directors' Information:- A M BEVERAGES PRIVATE LIMITED [Strike Off] CIN = U15500DL1993PTC052635

Company & Directors' Information:- R. J. BEVERAGES PRIVATE LIMITED [Under Process of Striking Off] CIN = U55101AS2010PTC010291

Company & Directors' Information:- S E BEVERAGES PRIVATE LIMITED [Active] CIN = U15122UP2015PTC071649

Company & Directors' Information:- M R BEVERAGES PRIVATE LIMITED [Active] CIN = U15549UP2005PTC030654

Company & Directors' Information:- D K BEVERAGES INDIA PRIVATE LIMITED. [Active] CIN = U15549HR2006PTC036491

Company & Directors' Information:- P & S BEVERAGES PRIVATE LIMITED [Active] CIN = U51909HR2021PTC096351

Company & Directors' Information:- B B BEVERAGES PRIVATE LIMITED [Strike Off] CIN = U26103KA2000PTC026211

Company & Directors' Information:- CHAIZUP BEVERAGES LLP [] CIN = AAE-9427

Company & Directors' Information:- M B S P & CO LLP [] CIN = AAI-4025

Company & Directors' Information:- Y N G AND CO LLP [] CIN = AAJ-6096

Company & Directors' Information:- ECOIRIA LLP [Active] CIN = AAO-2501

Company & Directors' Information:- V S K A & COMPANY LLP [Active] CIN = AAU-5542

Company & Directors' Information:- F A M S & CO LLP [Active] CIN = AAU-9603

Company & Directors' Information:- N K R G AND CO LLP [Active] CIN = AAX-4256

Company & Directors' Information:- H N C P & CO LLP [Active] CIN = AAT-5981

Company & Directors' Information:- V G R A N D & CO LLP [Under Process Of Strike Off] CIN = AAO-5777

Company & Directors' Information:- M U BEVERAGES PRIVATE LIMITED [Strike Off] CIN = U15122WB2013PTC194403

Company & Directors' Information:- C AGARWAL AND CO PVT LTD [Active] CIN = U51109MH1946PTC004955

Company & Directors' Information:- I C AGARWAL & CO PRIVATE LIMITED [Strike Off] CIN = U24129WB1997PTC083874

Company & Directors' Information:- J P BEVERAGES PRIVATE LIMITED [Strike Off] CIN = U52206MH2005PTC157662

Company & Directors' Information:- O' BEVERAGES PRIVATE LIMITED [Active] CIN = U15492MH2015PTC265585

Company & Directors' Information:- R S BEVERAGES PRIVATE LIMITED [Active] CIN = U74899DL1987PTC028782

Company & Directors' Information:- S A BEVERAGES INDIA PRIVATE LIMITED [Active] CIN = U15549DL2004PTC124633

Company & Directors' Information:- N R BEVERAGES LLP [Active] CIN = AAC-1013

Company & Directors' Information:- R S A C & CO LLP [Active] CIN = AAX-1702

Company & Directors' Information:- A B D AND CO LLP [] CIN = AAG-4228

Company & Directors' Information:- D G K T & CO LLP [Active] CIN = AAY-0763

Company & Directors' Information:- R H D B & CO LLP [] CIN = AAF-9564

Company & Directors' Information:- N J S R & CO LLP [Active] CIN = AAS-6904

Company & Directors' Information:- SHIV AND CO PVT LTD [Active] CIN = U15499PB1988PTC008267

Company & Directors' Information:- M S T S AND CO LLP [] CIN = AAJ-9789

Company & Directors' Information:- A G N & CO LLP [Active] CIN = AAT-3343

Company & Directors' Information:- A H S G & CO LLP [Active] CIN = AAU-8429

Company & Directors' Information:- J K J S & CO. LLP [] CIN = AAI-5880

Company & Directors' Information:- S N AGARWAL PVT LTD [Strike Off] CIN = U45201UP1984PTC006441

Company & Directors' Information:- AGARWAL K & CO. LLP [] CIN = AAE-6231

Company & Directors' Information:- A B A M & CO. LLP [] CIN = AAF-2113

Company & Directors' Information:- M N S H & CO LLP [] CIN = AAG-4390

Company & Directors' Information:- T & R INDIA LLP [] CIN = AAH-4079

Company & Directors' Information:- S G S R & CO LLP [] CIN = AAH-3391

Company & Directors' Information:- G K BEVERAGES LLP [] CIN = AAI-4374

Company & Directors' Information:- D M M & COMPANY LLP [] CIN = AAJ-7431

Company & Directors' Information:- Y S K AND CO LLP [Active] CIN = AAN-5713

Company & Directors' Information:- J K K & COMPANY LLP [Active] CIN = AAX-1522

Company & Directors' Information:- K L S AND CO LLP [] CIN = AAJ-7210

Company & Directors' Information:- A Y K J & CO LLP [Active] CIN = AAS-7373

Company & Directors' Information:- K N A AND CO LLP [Active] CIN = AAU-0083

Company & Directors' Information:- H S K & CO LLP [Active] CIN = AAT-9072

Company & Directors' Information:- S D U AND CO LLP [Active] CIN = AAM-9609

Company & Directors' Information:- AGARWAL CORPORATION PRIVATE LIMITED [Under Process of Striking Off] CIN = U70101RJ2014PTC045473

Company & Directors' Information:- S & M BEVERAGES PRIVATE LIMITED [Strike Off] CIN = U15122MH2013PTC248956

Company & Directors' Information:- U S BEVERAGES PRIVATE LIMITED [Strike Off] CIN = U15122UP2013PTC057899

Company & Directors' Information:- G B BEVERAGES PRIVATE LIMITED. [Strike Off] CIN = U15549DL2003PTC121087

Company & Directors' Information:- S K BEVERAGES PRIVATE LIMITED [Strike Off] CIN = U15510DL2007PTC169580

Company & Directors' Information:- M K BEVERAGES PRIVATE LIMITED [Active] CIN = U15531DL1999PTC100336

Company & Directors' Information:- SHIV KUMAR AND CO PRIVATE LIMITED [Under Process of Striking Off] CIN = U24117TN1980PTC008453

Company & Directors' Information:- R. AGARWAL AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U74899DL1986PTC025169

Company & Directors' Information:- N K AGARWAL AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U51900MH1973PTC016609

Company & Directors' Information:- R M BEVERAGES PRIVATE LIMITED [Strike Off] CIN = U74120HR2007PTC036992

Company & Directors' Information:- A P A R & CO LLP [Active] CIN = AAS-8336

Company & Directors' Information:- A A M K & CO LLP [Active] CIN = AAT-0385

Company & Directors' Information:- V U D & CO LLP [Active] CIN = AAT-1391

Company & Directors' Information:- A K M W AND CO LLP [Active] CIN = AAF-4352

Company & Directors' Information:- M B D & CO LLP [] CIN = AAG-6725

Company & Directors' Information:- S R J N & CO LLP [] CIN = AAH-0969

Company & Directors' Information:- A T M S & CO LLP [] CIN = AAH-2210

Company & Directors' Information:- J J J AND COMPANY LLP [] CIN = AAH-6513

Company & Directors' Information:- B G K & CO LLP [] CIN = AAI-2849

Company & Directors' Information:- M N K D & CO LLP [] CIN = AAI-9526

Company & Directors' Information:- D S R V AND CO LLP [] CIN = AAJ-5358

Company & Directors' Information:- K D M AND CO LLP [] CIN = AAJ-9144

Company & Directors' Information:- S P K G & CO LLP [] CIN = AAK-1705

Company & Directors' Information:- V D S R & CO LLP [] CIN = AAK-2237

Company & Directors' Information:- M A S P N & CO LLP [] CIN = AAK-4575

Company & Directors' Information:- N P K & COMPANY LLP [] CIN = AAL-7453

Company & Directors' Information:- J B S K & CO LLP [Active] CIN = AAN-2033

Company & Directors' Information:- D R P B AND CO LLP [Active] CIN = AAN-7871

Company & Directors' Information:- PALVIT DEVELOPERS LLP [Active] CIN = AAO-3310

Company & Directors' Information:- N G V R AND COMPANY LLP [Active] CIN = AAO-4093

Company & Directors' Information:- J A S N & CO LLP [Active] CIN = AAP-0336

Company & Directors' Information:- R S A G AND CO LLP [Active] CIN = AAP-1444

Company & Directors' Information:- P R P A & COMPANY LLP [Active] CIN = AAT-7868

Company & Directors' Information:- S M B C & COMPANY LLP [Active] CIN = AAU-0557

Company & Directors' Information:- L M R K & CO LLP [Active] CIN = AAV-4030

Company & Directors' Information:- S L B M AND CO LLP [Active] CIN = AAV-4289

Company & Directors' Information:- R AND R BEVERAGES LLP [Active] CIN = AAW-2396

Company & Directors' Information:- V K & COMPANY LLP [Active] CIN = AAW-7564

Company & Directors' Information:- D A M & CO LLP [Active] CIN = AAW-8134

Company & Directors' Information:- N A D & CO LLP [Active] CIN = AAW-9504

Company & Directors' Information:- A B R & CO LLP [Active] CIN = AAX-0331

Company & Directors' Information:- V H P A & CO LLP [Active] CIN = AAY-1712

Company & Directors' Information:- N C A P & COMPANY LLP [Active] CIN = AAY-2026

Company & Directors' Information:- B M P S & CO LLP [Active] CIN = AAW-9364

Company & Directors' Information:- J K J & CO LLP [] CIN = AAE-5439

Company & Directors' Information:- S G C O & CO LLP [] CIN = AAI-0379

Company & Directors' Information:- G P S & CO LLP [] CIN = AAI-0872

Company & Directors' Information:- K K A B & CO LLP [] CIN = AAJ-3296

Company & Directors' Information:- C S D AND CO LLP [] CIN = AAJ-4629

Company & Directors' Information:- M P G V & CO LLP [] CIN = AAJ-5351

Company & Directors' Information:- A T S G & CO LLP [] CIN = AAK-3751

Company & Directors' Information:- G G S H & CO. LLP [] CIN = AAL-8083

Company & Directors' Information:- J N S V & CO LLP [Active] CIN = AAM-6900

Company & Directors' Information:- S P K T & CO LLP [Active] CIN = AAN-7572

Company & Directors' Information:- S H A & CO LLP [Active] CIN = AAO-4028

Company & Directors' Information:- R S S P K & CO LLP [Under Process Of Strike Off] CIN = AAR-2109

Company & Directors' Information:- A A S S & COMPANY LLP [Active] CIN = AAT-4426

Company & Directors' Information:- R R S J & CO LLP [Active] CIN = AAV-8062

Company & Directors' Information:- A R B R & CO LLP [Active] CIN = AAX-6334

Company & Directors' Information:- S K B & COMPANY LLP [Active] CIN = AAT-5051

Company & Directors' Information:- P R S S & CO LLP [Active] CIN = AAW-2115

Company & Directors' Information:- G A S A & CO LLP [Active] CIN = AAU-4365

Company & Directors' Information:- S P A S AND CO LLP [Active] CIN = AAS-9005

Company & Directors' Information:- S K R AND COMPANY LLP [Active] CIN = AAB-9330

Company & Directors' Information:- C S AND CO LLP [] CIN = AAL-5204

Company & Directors' Information:- M M G S AND CO LLP [Active] CIN = AAW-8857

Company & Directors' Information:- A J M S & CO LLP [Active] CIN = AAS-6794

Company & Directors' Information:- S B S S & CO LLP [] CIN = AAG-2178

Company & Directors' Information:- P Y S & CO LLP [] CIN = AAG-9715

Company & Directors' Information:- P U M & CO LLP [Under Process Of Strike Off] CIN = AAP-1869

Company & Directors' Information:- P V R A & CO LLP [Active] CIN = AAP-2457

Company & Directors' Information:- K S N C & CO LLP [Active] CIN = AAQ-8095

Company & Directors' Information:- A R N P AND CO LLP [Active] CIN = AAS-7063

Company & Directors' Information:- N M G K & COMPANY LLP [Active] CIN = AAU-2181

Company & Directors' Information:- S H A P AND COMPANY LLP [Active] CIN = AAU-5309

Company & Directors' Information:- B K Y & CO LLP [Active] CIN = AAU-7172

Company & Directors' Information:- B R D P & CO LLP [Active] CIN = AAV-4924

Company & Directors' Information:- S R B A & CO LLP [] CIN = AAF-9001

Company & Directors' Information:- C S M & CO LLP [Active] CIN = AAW-1462

Company & Directors' Information:- A C C A & CO LLP [] CIN = AAF-2112

Company & Directors' Information:- K A M AND CO LLP [Active] CIN = AAU-7380

Company & Directors' Information:- S C M K & CO LLP [Active] CIN = AAT-2422

    W.P. Nos. 10969, 10972 & 10978 of 2020 & WMP. Nos. 13335, 13339 & 13343 of 2020

    Decided On, 26 March 2021

    At, High Court of Judicature at Madras

    By, THE HONOURABLE DR.(MRS.) JUSTICE ANITA SUMANTH

    For the Petitioner: Hari Radhakrishnan, Advocate. For the Respondents: M. Santhanaraman, Senior Standing Counsel.



Judgment Text

(Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to Writ of Certiorari to call for the records pertaining to impugned order-in-appeal Nos.05/2020, 06/2020 and 07/2020 dated 12.05.2020 passed by the 2nd responent and quash the same.)1. These Writ Petitions challenge appellate orders dated 12.05.2020 passed by R2 confirming the rejection of the refunds claimed by the petitioner. The rejection is confirmed taking note of paragraph 2.5 of Board's Circular No.37/18-Customs dated 09.10.2018, on the ground that there has been an excess claim of duty draw back by the petitioner, as per which, they have renounced their claim for Input Tax Credit (ITC).2. Though the Writ Petitions challenge orders for the months of July, August and September, 2017, the petitioner does not pursue its claim for the month of July, 2017 and files a memo dated 26.03.2021 requesting that the Writ Petition be closed as withdrawn. Accordingly, W.P.No.10969 of 2020 pertaining to appellate order dated 12.05.2020 in Appeal No.05/2020 for the month of July, 2017 is dismissed as withdrawn.3. As regards the Writ Petitions for the months of August and September, 2017, the petitioner had admittedly claimed excess draw back. The petitioner is an exporter of tea and had engaged in export transactions without payment of Integrated Goods and Service Tax (IGST). According to the petitioner, export of goods and services are to be treated as zero rated supplies in terms of Section 16 of the Goods and Service Tax Act, 2017 (in short 'Act'). A claim for draw back in terms of the provisions of the Customs Act, 1962 had been made. The claim was sanctioned and the petitioner has received the draw back.4. Despite the transactions being categorised as zero rated supplies, the petitioner remitted IGST, Central Goods and Service Tax (CGST) and State Goods and Service Tax (SGST) on the purchase of tea and such tax was credited in its electronic credit ledger. The petitioner thereafter filed an application for refund of the amounts taking advantage of Section 54 of the Act.5. 90% of the claim was sanctioned on a provisional basis, but was followed by a show cause notice dated 02.04.2018, since R1, the Assessing Authority, was of the view that the refund was liable to be rejected in entirety invoking the third proviso to Section 54(3) of the Act and on the basis that the petitioner had availed draw back at a higher rate than applicable. Thus the claim was proposed to be rejected in full and the amount provisionally sanctioned was proposed to be recovered as well.6. Despite replies of the petitioner contending otherwise, orders of rejection came to be passed, that have been confirmed vide the impugned appellate orders. In the course of the appeal hearing, the petitioner took an alternate plea before R2 for sanction of refund after setting off of the draw back already claimed. This was also rejected. Though second appeal is provided before the Goods and Services Tax Appellate Tribunal, these Writ Petitions are maintainable for the reason that the Tribunal is yet to be constituted.7. Heard Mr.Hari Radhakrishnan, learned counsel for the petitioner and Mr.Santhanaraman, learned counsel for the respondent.8. The respondent places reliance on Circular No.37/18-Customs dated 09.10.2018, particularly paragraph 2.5 thereof, which reads as follows:2.5 By declaring drawback serial number suffixed with A or C and by making above stated declarations, the exporters consciously relinquished their IGST/ITC claims.'9. According to R2, since the claim of draw back was inflated, the petitioner automatically renounced any claim towards refund of ITC. A Division Bench of the Gujarat High Court in Real Prince Spintex Pvt. Ltd. V. Union of India (2020 (35) GSTL 369) and a learned single Judge of this Court in Precot Meridian Ltd. V. Commissioner of Customs, Tuticorin (2020 (34) GSTL 34) have held otherwise.10. The provisions of Section 54 of the Act read as follows:54. Refund of tax.(1) Any person claiming refund of any tax and interest, if any, paid on such tax or any other amount paid by him, may make an application before the expiry of two years from the relevant date in such form and manner as may be prescribed:Provided that a registered person, claiming refund of any balance in the electronic cash ledger in accordance with the provisions of sub-section (6) of section 49, may claim such refund in the return furnished under section 39 in such manner as may be prescribed.(2) A specialised agency of the United Nations Organisation or any Multilateral Financial Institution and Organisation notified under the United Nations (Privileges and Immunities) Act, 1947, Consulate or Embassy of foreign countries or any other person or class of persons, as notified under section 55, entitled to a refund of tax paid by it on inward supplies of goods or services or both, may make an application for such refund, in such form and manner as may be prescribed, before the expiry of six months from the last day of the quarter in which such supply was received.(3) Subject to the provisions of sub-section (10), a registered person 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 allowed 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 Government 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 subjected 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..........11. It is clear from a reading of Section 54(3) that the petitioner is entitled to one or the other of two benefits, i) duty draw back or ii) Input Tax Credit. Thus, an option has been extended to an assessee engaged in zero rated sale to either claim the benefit of duty drawback or the benefit of refund of ITC. That is why, in the present case, the petitioner, for the month of July, 2017 has opted to stick with the claim of duty draw back seeing as the amount of drawback is higher than the ITC for the months of August and September, 2017.12. On a plain reading of Section 54 (3) I find the claim of refund to be in order. The orders of the appell

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ate authority are set aside and the authority is directed to refund the sanctioned amounts within a period of six (6) weeks from today. In doing so, the contents of paragraph 2.5 of the Circular will not stand in the way since a circular cannot stand in the way of a benefit offered under a statutory scheme. Paragraph 2.5 of the circular, insofar as it is contrary to the statutory provisions of Section 54(3) is bad in law.13. The aforesaid view finds support from the decision of the Gujarat High Court in Real Prince Spintex Pvt. Ltd. (supra) and a learned single Judge of this Court sitting in Madurai Bench in Precot Meridian Ltd. (supra). W.P.Nos.10978 and 10972 of 2020 are allowed. No costs. Connected Miscellaneous Petitions are closed.
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