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No refund of unutilised ITC on Input Services in case of inverted duty structure: Says Supreme Court. However, given the anomalies pointed out by the assessees, SC strongly urged GST Council to reconsider the formula and take a policy decision regarding the same.

UNION OF INDIA vs. VKC FOOTSTEPS INDIA PVT. LTD
(Supreme Court)

Supreme Court reversed the judgement of Gujarat High Court which declared rule 89(5) of CGST Rules ultra vires the provisions of Section 54(3) of CGST Act. 

Rule 89(5) denies the refund of “unutilised input tax” paid on “input services” as part of “input tax credit” accumulated on account of inverted duty structure. Gujarat High Court had held that refund of GST paid on 'input services' shall also be considered for the refund calculation under Rule 89(5) of CGST Rules. Gujarat High Court directed to allow the claim of the refund made by the petitioners considering the unutilised input tax credit of “input services” as part of the “net input tax credit” (Net ITC) for the purpose of calculation of the refund of the claim as per Rule 89(5) of the CGST Rules,2017 for claiming refund under Sub-section 3 of Section 54 CGST Act, 2017.

On the other hand, Madras High Court in the case of TVL. TRANSTONNELSTROY AFCONS JOINT VENTURE had held rule 89(5) as valid and legal and denied the refund of untilised ITC on input services in case of inverted duty structure. This order has been upheld by SC.

Supreme Court Version

The above judicial precedents indicate that in the field of taxation, this Court has only intervened to read down or interpret a formula if the formula leads to absurd results or is unworkable. In the present case however, the formula is not ambiguous in nature or unworkable, nor is it opposed to the intent of the legislature in granting limited refund on accumulation of unutilised ITC. It is merely the case that the practical effect of the formula might result in certain inequities. The reading down of the formula as proposed by Mr Natarjan and Mr Sridharan by prescribing an order of utilisation would take this Court down the path of recrafting the formula and walk into the shoes of the executive or the legislature, which is impermissible. Accordingly, we shall refrain from replacing the wisdom of the legislature or its delegate with our own in such a case. However, given the anomalies pointed out by the assessees, we strongly urge the GST Council to reconsider the formula and take a policy decision regarding the same.

The Division Bench of the Gujarat High Court having examined the provisions of Section 54(3) and Rule 89(5) held that the latter was ultra vires. In its decision in VKC Footsteps India Pvt. Ltd. (supra), the Gujarat High Court held that by prescribing a formula in sub-Rule (5) of Rule 89 of the CGST Rules to execute refund of unutilized ITC accumulated on account of input services, the delegate of the legislature had acted contrary to the provisions of sub-Section (3) of Section 54 of the CGST Act which provides for a claim of refund of any unutilized ITC. The Gujarat High Court noted the definition of ITC in Section 2(62) and held that Rule 89(5) by restricting the refund only to input goods had acted ultra vires Section 54(3). The Division Bench of the Madras High Court on the other hand while delivering its judgment in Tvl. Transtonnelstory Afcons Joint Venture (supra) declined to follow the view of the Gujarat High Court noting that the proviso to Section 54(3) and, more significantly, its implications do not appear to have been taken into consideration in VKC Footsteps India Pvt. Ltd. (supra) except for a brief reference. Having considered this batch of appeals, and for the reasons which have been adduced in this judgment, we affirm the view of the Madras High Court and disapprove of the view of the Gujarat High Court. 


​VKC FOOTSTEPS INDIA PVT. LTD. vs. UNION OF INDIA & OTHERS
(Gujarat High Court)

Click here to view the judgement

Gujarat High Court Version

Landmark judgement by Gujarat High Court on refunds on account of inverted duty structure under GST. 

Gujarat High Court declared Rule 89(5) of CGST Rules ultra vires the provisions of Section 54(3) of CGST Act, which denies the refund of “unutilised input tax” paid on “input services” as part of “input tax credit” accumulated on account of inverted duty structure.

Court held that refund of GST paid on 'input services' shall also be considered for the refund calculation under Rule 89(5) of CGST Rules.

High Court directed to allow the claim of the refund made by the petitioners considering the unutilised input tax credit of “input services” as part of the “net input tax credit” (Net ITC) for the purpose of calculation of the refund of the claim as per Rule 89(5) of the CGST Rules,2017 for claiming refund under Sub-section 3 of Section 54 CGST Act, 2017.

Facts of Case

The Petitioner is engaged in the business of manufacture and supply of footwear which attracts GST at the rate of 5%. The Petitioner procures input services such as job work service, goods transport agency service etc. and inputs such as synthetic leather, PU Polyol, etc., on payment of applicable GST for use in the course of business and avails input tax credit of the GST paid thereon. Majority of the inputs and input services attract GST at the rate of 12% or 18%. Thus, GST rate paid by the Petitioner on procurement of input is higher than the rate of tax payable on their outward supply of footwear. Therefore, in spite of utilization of credit for payment of GST on outward supply, there is accumulation of unutilized credit in electronic credit ledger of the Petitioners.

Sub-section 3 of Section 54 of the CGST Act provides for refund of unutilized input tax credit where the credit is accumulated on the account of tax rate on inputs being higher than the tax rate on output supplies. 

Rule 89(5) of the CGST Rules, 2017 is enacted to provide formula for determining the refund on account of inverted duty structure and an assessee is entitled to refund of the unutilized input tax credit availed during the relevant period proportionate to the turnover of inverted rated supply of goods vis-à-vis total turnover of the assessee for that period. The provision of Rule 89(5) of the CGST Rules, 2017 as originally introduced was substituted vide Notification No. 21/2018-CT dated 18.4.2018 prescribing a revised formula for determining the refund on account of inverted duty structure which was given retrospective effect from 1.7.2017 vide Notification No. 26/2018-CT dated 13.6.2018. The revised formula inter alia excluded input services from the scope of ‘net input tax credit’ for computation of the refund amount under the Rule. Thus, the substituted Rule 89(5) of the CGST Rules,2017 denied refund on the input tax credit availed on input services and allow relief of refund of input tax credit availed on inputs alone.

Amended Rule 89(5) is as below.

Rule 89(5) of CGST Rules, 2017

In the case of refund on account of inverted duty structure, refund of input tax credit shall be granted as per the following formula:-

Maximum Refund Amount = {(Turnover of inverted rated supply of goods and services) x Net ITC ÷ Adjusted Total Turnover} - tax payable on such inverted rated supply of goods and services.

Explanation:- For the purposes of this sub-rule, the expressions –

(a) Net ITC shall mean input tax credit availed on inputs during the relevant period other than the input tax credit availed for which refund is claimed under sub-rules (4A) or (4B) or both; and

[(b) "Adjusted Total turnover" and "relevant period" shall have the same meaning as assigned to them in sub-rule (4).]]

Reference:
Rule 89 of CGST Rules, 2017

Section 54 of CGST Act, 2017

Arguments by Revenue

Mr. Nirzar S. Desai, the learned standing counsel for the respondent submitted that the petitions are not maintainable as Rule 89(5) of the CGST Rules only provides the mode of calculation of refund available to the assessee on account of inverted duty structure and the same is not contrary to the provisions of Sub-section 3 of Section 54 of the CGST Act in any manner because Sub-section 3 of Section 54 only provides that 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 and Proviso to Sub-section 3 of Section 54 of the CGST Act makes an embargo on the claim of the refund of unutilised input tax credit as it shall be allowed in cases other than- zero-rated supplies made without payment of tax and where the credit has accumulated on account of rate of tax on inputs being higher than the rate of tax on output supplies, except supplies of goods or services or both as may be notified by the Government on the recommendations of the GST Council.

It was submitted that Section 164 of the GST empowered the Central Government to make rules on the recommendations of the Council, by notification, for carrying out the provisions of this Act. It was submitted that this Rule making power is conferred upon the Government in the widest possible manner to make rules for carrying out the provisions of the GST Act.

It was further pointed out that Sub- section 2 of Section 164 also empowers the Government without prejudice to the generality of the provision of sub-section (1) to make rules for all or any of the matters which by CGST Act,2017 are required to be, or may be, prescribed or in respect of which provisions are to be or may be made by the Rules and sub-Section 3 of Section 164 empowers the Government to have retrospective effect of such rules. It was therefore, submitted that the Government has framed the CGST Rules, 2017 in exercise of this rule making power conferred under Section 164 of the CGST Act. In such circumstances, it was submitted that the Rule 89(5) cannot be held to be ultra vires as it only provides the method of calculating the refund on account of inverted duty structure.

Held by High Court

From the conjoint reading of the provisions of Act and Rules, it appears that by prescribing the formula in Sub-rule 5 of Rule 89 of the CGGST Rules, 2017 to exclude refund of tax paid on “input service” as part of the refund of any unutilised input tax credit is contrary to the provisions of Sub-section 3 of Section 54 of the CGST Act,2017 which provides for claim of refund of “any unutilised input tax credit”. The word “Input tax credit” is defined in Section 2(63) means the credit of input tax. The word “input tax” is defined in Section 2(62), whereas the word “input” is defined in Section 2(59) means any goods other than capital goods and “input service” as per Section 2(60) means any service used or intended to be used by a supplier. Whereas “input tax” as defined in section 2(62) means the tax charged on any supply of goods or services or both made to any registered person. Thus “input” and “input service” are both part of the “input tax” and “input tax credit”. Therefore, as per provision of sub-section 3 of Section 54 of the CGST Act,2017, the legislature has provided that registered person may claim refund of “any unutilised input tax”, therefore, by way of Rule 89(5)of the CGST Rules,2017, such claim of the refund cannot be restricted only to “input” excluding the “input services” from the purview of “Input tax credit”. Moreover, clause (ii) of proviso to Sub-section 3 of Section 54 also refers to both supply of goods or services and not only supply of goods as per amended Rule 89(5) of the CGST, Rules

In view of the above analysis of the provisions of the Act and Rules keeping in mind scheme and object of the CGST Act, the intent of the Government by framing the Rule restricting the statutory provision cannot be the intent of law as interpreted in the Circular No.79/53/2018- GST dated 31.12.2018 to deny the registered person refund of tax paid on “input services’ as part of refund of unutilised input tax credit.

We are of the opinion that Explanation (a) to Rule 89(5) which denies the refund of “unutilised input tax” paid on “input services” as part of “input tax credit” accumulated on account of inverted duty structure is ultra vires the provision of Section 54(3) of the CGST Act, 2017.

In view of the above, Explanation (a) to the Rule 89(5) is read down to the extent that Explanation (a) which defines “Net Input Tax Credit’ means “input tax credit” only. The said explanation (a) of Rule 89(5) of the CGST Rules is held to be contrary to the provisions of Section 54(3) of the CGST Act. In fact the Net ITC should mean “input tax credit” availed on “inputs” and “input services” as defined under the Act.

The respondents are therefore, directed to allow the claim of the refund made by the petitioners considering the unutilised input tax credit of “input services” as part of the “net input tax credit” (Net ITC) for the purpose of calculation of the refund of the claim as per Rule 89(5) of the CGST Rules,2017 for claiming refund under Sub-section 3 of Section 54 CGST Act, 2017.


TVL. TRANSTONNELSTROY AFCONS JOINT VENTURE AND OTHERS vs. UNION OF INDIA AND OTHERS
(Madras High Court)

Click here to view the judgement

No refund of ITC on input services on account of inverted duty structure in GST : Says Madras High Court while dismissing bunch of writ petitions.

A very crucial and detailed judgement passed by Madras High Court in contradiction of judgement passed by Gujrat High Court in the case of VKC Footsteps India Pvt Ltd.

Following principles emerged out of this judgement.

a) Rule 89(5) of CGST Rules is in confirmity with with Section 54(3)(ii).

b) Rule 89(5) is not ultra vires.

c) Section 54(3)(ii) does not infringe Article 14.

d) There is no necessity to adopt the interpretive device of reading down so as to save the constitutionality of Section 54(3)(ii).

e) It is not necessary to interpret Rule 89(5) and, in particular, the definition of Net ITC therein so as to include the words input services.

Contradictory Judgements:

It is to be noted that the above judgement is in contradiction of judgment passed by Gujrat High Court in the case of VKC Footsteps India Pvt Ltd. The brief of this judgment is below:

Gujarat High Court declared Rule 89(5) of CGST Rules ultra vires the provisions of Section 54(3) of CGST Act, which denies the refund of “unutilised input tax” paid on “input services” as part of “input tax credit” accumulated on account of inverted duty structure.

Court held that refund of GST paid on 'input services' shall also be considered for the refund calculation under Rule 89(5) of CGST Rules.

High Court directed to allow the claim of the refund made by the petitioners considering the unutilised input tax credit of “input services” as part of the “net input tax credit” (Net ITC) for the purpose of calculation of the refund of the claim as per Rule 89(5) of the CGST Rules,2017 for claiming refund under Sub-section 3 of Section 54 CGST Act, 2017.

 

FACTS OF CASES

All the Petitioners are engaged in businesses wherein the rate of tax on input goods and/or input services exceeds the rate of tax on output supplies. This contingency is referred to as an inverted duty structure. As a result, the registered person is unable to adjust the available input tax credit fully against the tax payable on output supplies; consequently, there is an accumulation of unutilised input tax credit. 

The case of the Petitioners is that they are entitled to a refund of the entire unutilised input tax credit, irrespective of whether such credit accumulated on account of procurement of input goods and/or input services by paying tax at a higher rate than that paid on output supplies. 

On the contrary, the case of the Union of India and the Tax Department, both at the Central and State level, is that refund of unutilised input tax credit is permissible only in respect of the quantum of credit that has accumulated due to the procurement of input goods at a higher rate than that paid on output supplies, and that credit accumulation on account of procuring input services at a rate of tax higher than that paid on output supplies is liable to be disregarded for refund purposes.

At the heart of this batch of writ petitions is the question whether the Petitioners are entitled to a refund of the entire unutilised input tax credit that each of them has accumulated on account of being subjected to an inverted duty structure. In certain cases, the constitutional validity of Section 54(3)(ii) of the CGST Act is impugned, whereas, in others, a declaration is prayed for that the amended Rule 89(5) of the CGST Rules is ultra vires Section 54 of the CGST Act and the Constitution of India. 

One of the issues that takes centre-stage in these cases is the correct meaning to be ascribed to the word “inputs” in Section 54(3)(ii) of the CGST Act and in the definition of “Net ITC” in the amended Rule 89(5) of the CGST Rules. Therefore, except while dealing with the text of Section 54 and Rule 89 where the word “inputs” is used, for the sake of clarity, the words 'input goods' is used while dealing with goods that are used as inputs, and 'input services' is used while dealing with services that are used as inputs.

 

Section 54(3) of CGST Act

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:

 

Rule 89(5) of CGST Rules

In the case of refund on account of inverted duty structure, refund of input tax credit shall be granted as per the following formula:-

Maximum Refund Amount = {(Turnover of inverted rated supply of goods and services) x Net ITC ÷ Adjusted Total Turnover} - tax payable on such inverted rated supply of goods and services.

Explanation:- For the purposes of this sub-rule, the expressions –

(a) Net ITC shall mean input tax credit availed on inputs during the relevant period other than the input tax credit availed for which refund is claimed under sub-rules (4A) or (4B) or both; and

[(b) "Adjusted Total turnover" and "relevant period" shall have the same meaning as assigned to them in sub-rule (4).]

 

QUESTIONS FOR CONSIDERATION

The contentions, including notes on submissions, of the learned counsel for the respective parties were duly considered and they raise several questions for the consideration of this Court. The said questions are as under:

(1) Whether Section 54(3)(ii) infringes Article 14 of the Constitution?

(2) Whether it is necessary to read the word “inputs” in Section 54(3)(ii) as encompassing both goods and services so as to ensure that the said provision is not struck down?

(3) Whether the words input services may be read into the word “inputs” by resorting to the interpretive principle of reading down the statute?

(4) Whether the words input services may be read into Section 54(3)(ii) as an exception to the general rule of casus omissus?

(5) Whether the proviso to Section 54(3) qualifies and curtails the scope of the principal clause to the limited extent of specifying the two cases in which registered persons become eligible for a refund of the unutilised input tax credit?

(6) Whether sub-clause (ii) of the proviso merely stipulates the eligibility conditions for claiming a refund of the unutilised input tax credit or whether it also curtails the entitlement to refund to unutilised input tax credit from a particular source, namely, input goods and excludes input services?

(7) Whether the rule making power under Section 164 empowers the Central Government to make Rule 89(5) as amended?

(8) Whether Rule 89(5) of the CGST Rules, as amended, is ultra vires Section 54(3) of the CGST Act?

(9) Whether the definition of the term Net ITC, as contained in Rule 89(5), is liable to be read as encompassing both input goods and input services?

HELD BY HIGH COURT

The subject matter of controversy is the entitlement to refund of unutilised input tax credit and not the availing of input tax credit.

Under Section 54(3)(ii), Parliament has provided the right of refund only in respect of unutilised credit that accumulates on account of the rate of tax on input goods being higher than the rate of tax on output supplies. Given the fact that we have concluded that Section 54(3)(ii), on a plain reading, does not violate Article 14, it is not necessary to draw definitive conclusions on the scope of reading down or to examine if the casus omissus rule should be deviated from in this case.

We arrive at the following conclusions:

(1) Section 54(3)(ii) does not infringe Article 14.

(2) Refund is a statutory right and the extension of the benefit of refund only to the unutilised credit that accumulates on account of the rate of tax on input goods being higher than the rate of tax on output supplies by excluding unutilised input tax credit that accumulated on account of input services is a valid classification and a valid exercise of legislative power.

(3) Therefore, there is no necessity to adopt the interpretive device of reading down so as to save the constitutionality of Section 54(3)(ii).

(4) Section 54(3)(ii) curtails a refund claim to the unutilised credit that accumulates only on account of the rate of tax on input goods being higher than the rate of tax on output supplies. In other words, it qualifies and curtails not only the class of registered persons who are entitled to refund but also the imposes a source-based restriction on refund entitlement and, consequently, the quantum thereof.

(5) As a corollary, Rule 89(5) of the CGST Rules, as amended, is in conformity with Section 54(3)(ii).

Consequently, it is not necessary to interpret Rule 89(5) and, in particular, the definition of Net ITC therein so as to include the words input services.

In view of the aforesaid analysis and discussions we hold as follows:

(i) All the writ petitions challenging the constitutional validity of Section 54(3)(ii) are dismissed.

(ii) All the writ petitions challenging the validity of Rule 89(5) of the CGST Rules on the ground that it is ultra vires Section 54(3)(ii) of the CGST Act and/or the Constitution are dismissed.

(iii) Consequently, all the writ petitions for a mandamus to direct the refund claims to be processed are dismissed.


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Sep 14, 2021

Comments


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By: Gajanan Khare Adv | Dt: Jul 31, 2020
Division of the Gujarat High court has rightly pointed out the denial of the clai of refund .
The government should resist from applying to the supreme court.
By: Bhamre V. D. | Dt: Jul 31, 2020


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