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Judgment
Ashok Jindal, Member (J)
The respondent has filed an application for early hearing of the appeal. The reasons for filing the application are considered and found satisfactory.
Therefore, the application for early hearing of the appeal is allowed and with the consent of both sides, the appeal is also taken up for final hearing today itself.
The Revenue is in appeal against the impugned order, wherein the refund of IGST paid by the respondent at the time of export of iron ore is involved.
The facts of the case are that the respondent is engaged in the export of iron ore and have paid the IGST on the goods, which are to be exported and paid the export duty at the time of export. The respondent claimed refund of the Customs duty paid by them at the time of export. The Revenue initially sanctioned the refund claim to the respondent and later on, proceedings were initiated against the respondent by invoking Section 28 of the Customs Act, 1962 to recover the amount already refunded to them erroneously. Therefore, this appeal is filed before me.
The ld.A.R. for the Revenue-Appellant, submits that the Revenue has filed this appeal. In terms of Section 54 (3) of the CGST Act, 2017, no refund of unutilized input tax credit shall be allowed in case where the goods exported outside India are subjected to export duty. Admittedly, in this case, the goods exported by the respondent are subject to export duty, therefore, they are not entitled to claim the refund of unutilized tax credit lies with the Revenue.
On the other hand, the ld. Counsel for the Respondent, opposes the contention of the ld.A.R. for the Revenue and submits that it is not a case of refund of unutilized input tax credit. It is a case of export of goods and they have paid IGST at the time of export and the goods have been exported on payment of Customs duty. Therefore, the provision of Section 54 (3) of the CGST Act, 2017 is not applicable to the present facts and circumstances of the case. It is further contended that Section 28 of the Customs Act, 1962 is also not applicable to the present facts of this case as it is a case of refund of IGST. It is further submitted that as per CBEC Circular F.No.390/Misc./30/2023-JC dated 02.11.2023, the appeal is not maintainable as the amount of revenue is less than Rs.50.00 lakhs.
In rebuttal to the arguments advanced by the ld.Counsel for the respondent, the ld.A.R. for the Revenue submits that as the issue is recurring in nature, therefore the CBEC Circular dated 02.1.1.2023 is not applicable to the facts and circumstances of the case.
Heard both sides and considered the submissions.
It is not disputed by both sides that it is a case of refund of IGST and the appeal is filed under the Customs Act,1962 for erroneously refund of duty paid to the respondent. Admittedly, there is no refund of Customs duty involved in this case, it is a refund of IGST, which is not governed by the Customs Act, 1962. Therefore, this appeal is not maintainable under the Customs Act, 1962.
Further, I find that the Revenue has filed this appeal in terms of Section 54 (3) of the CGST Act, 2017. Section 54 (3) of the CGST Act, 2017 is not applicable to the facts and circumstances of the case as it is a case of refund of input tax credit. Further, there is no other case is pending with regard to the respondent in litigation, therefore, on litigation seeking also, the respondent succeeds.
In these terms, I do not find any merit in the appeal filed by the Revenue, accordingly, the same is dismissed.