QUESTION

Taxable person had exported goods in July, 2017 and claimed for refund of accumulated ITC for said month. Refund was rejected on account of reason that export was made with higher drawback claim. Later on rejected amount was not credited back to Credit Ledger of taxable person by Department & same was claimed by taxable person in March, 2019 GSTR – 3B and same was intimated in writing to Department by taxable person. Kindly assist in following issue a) Whether taxable person is eligible for said credit amount (Rejected amount of Refund of July, 2017) which was taken by him March, 2019 GSTR – 3B or same needs to be reversed? b) Whether credit of State Tax is allowed and only Central Tax is to be reversed as clarified by CBIC in circular? c) Whether Madras HC ruling in this matter has been delivered? – Matter argued by Avinash Poddar – Or any other Judicial precedent in this matter? d) What is the responsibility of GST Auditor and how this should be dealt while conducting GST Audit?

ANSWER

As per Duty Drawback rule, there are two types of Drawbacks:
1. All Industry Rate
2. Brand Rate Fixation

All Industry Rate is fixed on the basis of calculations done by Ministry of Commerce. It is on account of Custom Duty loaded directly/indirectly in the cost of goods exported. This drawback is given to the exporter on the basis of shipping bill irrespective of the fact whether any export is made by the exporter or not. Since all industry rate is fixed for custom duty loaded on the price, it can be claimed along with ITC.
The second type of drawback is Brand Rate Fixation. Under this scheme the exporter claims drawback of tax actually paid by him whether it is GST/Custom.
Amendment in FTP vide N/N 28/2015-2020 dt 31/10/2019 provides availability of Brand Rate Fixation as follows:
a) Claim drawback of custom portion on the basis of import documents with ITC of GST u/s 16 of CGST Act.
b) Claim of custom duty paid on import on the basis of import documents with GST paid on import as well as domestic procurement. With this ITC of GST cannot be claimed.

As per CBIC Circular No.37/11/2018-CGST
2. Non-availment of drawback: The third proviso to sub-section (3) of section 54 of the CGST Act states that no refund of input tax credit shall be allowed in cases where the supplier of goods or services or both avails of drawback in respect of central tax.

2.1 This has been clarified in paragraph 8.0 of Circular No. 24/24/2017 ' GST, dated 21st December 2017. In the said paragraph, reference to 'section 54(3)(ii) of the CGST Act' is a typographical error and it should read as 'section 54(3)(i) of the CGST Act'. It may be noted that in the said circular reference has been made only to central tax, integrated tax, State / Union territory tax and not to customs duty leviable under the Customs Act, 1962. Therefore, a supplier availing of drawback only with respect to basic customs duty shall be eligible for refund of unutilized input tax credit of central tax / State tax / Union territory tax / integrated tax / compensation cess under the said provision. It is further clarified that refund of eligible credit on account of State tax shall be available even if the supplier of goods or services or both has availed of drawback in respect of central tax.

Circular No.24/24/2017-GST dt.21.12.2017


8.0 It is also clarified that the drawback of all taxes under GST (Central Tax, Integrated  Tax, State/Union Territory Tax) should not have been availed while claiming refund of accumulated ITC under section 54(3)(i) of the CGST Act. A declaration to this effect forms  part of  FORM GST RFD-01A as well.

In view of the above said Circulars if you have taken Drawback then you are not eligible to claim ITC of such duty/tax.