M/S.Daimler India Commercial v. Joint Commissioner (St)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.12.2022
CORAM
THE HONOURABLE DR. JUSTICE ANITA SUMANTH W.P.No.30970, 30974, 30977, 30972, 30980, 30971, 30973, 30978, 30979 & 30975 of 2019 WP.No.30970 of 2019 M/s.Daimler India Commercial Vechicles Pvt. Ltd.
(Represented by its Authorized Signatory) No. 8-B, SIPCOT Industrial Estate, Oragadam, Mathur Post, Sriperumbudur Taluk Kancheepuram District-602 105
...Petitioner
Vs.
1.Joint Commissioner (ST) MoU Cell SIPCOT Premises Chennai-600 008.
2.The Managing Director SIPCOT Ltd., Egmore, Chennai 600 008.
3.The Assistant Commissioner (ST) Oragadam Assessment Circle Padapai-601 301.
4.Commissioner of State Taxes Chepauk, Chennai 05.
5.Government of Tamil Nadu Represented Through its Finance Secretary Tamil Nadu Secretariat, Chennai 600 009.
...Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India, to issue a Writ of certiorari calling for the records relating to the Impugned order in Letter No. 1 / 2018 / Daimler / CG / dated 19.11.2018 passed by the 1st Respondent and quash the same and direct the 1st Respondent to refund the entire VAT paid on Capital Goods by the Petitioner. For Petitioner : Mr.Raghavan Ramabadran For Respondent : Mr.Haja Nazirudeen Additional Advocate General for : Mr.V.Prasantha Kiran [R1, R2 & R4] Government Advocate : Mr.R.U.Dinesh Rajkumar [R5] Additional Government Pleader : Ms.A.Suganya [R2]
O R D E R
The issue arising in these writ petitions relates to the refund of input tax credit (ITC) under the provisions of the Tamil Nadu Value Added Tax Act, 2006 (in short 'Act'). The petitioner had entered into an memorandum of understanding (MoU) with the Government of Tamil Nadu for setting up of a ultra mega power project in SIPCOT.
2. The MoU provides for various incentives including the refund of ITC. Para 5(f) (ii) of MoU reads as follows:
(f) Refund of Input VAT:
.....
(ii) For the Proposed Ultra Mega Project: Input VAT for purchase made in Tamil Nadu shall be refunded as Investment Promotion Subsidy for a period concurrent with the period of Output VAT + CST refund. Inputs eligible for VAT refund will
include raw materials, consumables, spare parts, packing materials, components and accessories (but excluding high speed diesel, light diesel oil and molasses etc.) purchased within Tamil Nadu and used for manufacturing in the Project. This refund of input VAT will be eligible only if the commodity purchased by the project is not a subject matter of any output VAT based incentive for its supplier or manufacturer in the previous VAT Chain since the input VAT is refunded, there will be no set-off or Input Tax Credit. Input VAT refund shall not be subjected to the overall ceiling of 115% Output VAT + CST refund incentive. After the relevant period for refund of Input VAT under the MoU is terminated, the normal procedure with respect to set-off against Output VAT or as Input Tax credit shall apply, in accordance with VAT Law.
3. The petitioner had, as a consequence, sought refund of various amounts and orders had come to be passed by authorities restricting the refund granted. The claim of ITC had been rejected on the ground that such refund would have to be tested on the anvil of Section 19 of the Act that sets out certain conditions there for. In the writ petition filed, the petitioner has conceded to some of the restrictions made.
4. The ultimate analysis of the (i) refund claims put forth by the petitioner (ii) amounts not pursued by the petitioner at the stage of writ petitions are tabulated below:
W.P.Nos.
30970 of 30972 of 30974 of 30977 of 30980 of Year 2011-12 2012-13 2013-14 2014-15 2015-16 Sl.
No.
Particulars Amount Refund Claimed 2,18,64,400 12,08,09,715 1,90,95,971 4,45,55,430 2,41,84,460 Refund Allowed 1,50,38,718 7,13,84,889 1,50,01,879 4,14,76,024 1,80,57,148
Refund Rejected (A+B+C+D+E) 68,25,682 4,94,24,826 40,94,092 30,79,406 61,27,312 MOU Vendor claim 3,31,060 1,96,35,282 2,02,372 17,24,350 32,46,600 Excess claim made than Annexure-I 23,31,252 13,85,594 7,17,430 - - CST Purchases 50,989 Refund not contested (A+B+C) 26,62,312 2,10,20,876 9,19,802 17,24,350 32,97,589 Ineligible capital goods claim 37,81,685 42,91,084 3,52,029 57,125 12,35,616 Ineligible claim beyond 90 days under Section 19(11) of TNVAT Act 3,81,327 2,41,12,866 27,70,975 12,97,931 16,39,107 Refund Contested (D+E) 41,63,012 2,84,03,950 31,23,004 13,55,056 28,74,723 References Para Number of the Affidavit Page Number of the Index dated 24.10.2019 (Impugned Order) SUMMARY OF DISPUTED REFUND AMOUNT - INPUTS Writ Petition Number 30971 of 30973 of 30975 of 30978 of 30979 of Year 2012-13 2013-14 2014-15 2015-16 2016-17 Sl.N o.
Particulars Amount Refund Claimed 7,88,37,909 23,30,96,259 65,37,54,776 71,68,84,544 85,39,41,938 Refund Allowed 6,38,49,799 19,80,91,252 39,70,37,667 71,40,83,732 64,70,15,046 Refund Rejected (A+B+C+D+E+F+G +H) 1,49,88,110 3,50,05,007 25,67,17,109 28,00,812 20,69,26,892 ITC Reversal u/s 192(2)(V) of the TNVAT Act 3,31,060 3,17,23,761 25,44,13,244 - - Closing Stock 23,31,252 - - - 20,68,52,232 Input on Capital goods and trading goods 1,10,39,397 - - - -
Purchase from MoU vendor 39,15,439 - - - - Refund not contested (A+B+C+D) 1,76,17,148 3,17,23,761 25,44,13,244 - 20,68,52,232 RC Cancellation 9,081 5,52,432 1,169 21,606 36,962 Ineligible claim beyond 90 days under Section 19(11) of TNVAT Act - 24,83,069 19,13,121 19,04,237 37,698 Vendor paid less tax - 1,85,318 2,95,999 8,74,969 - Reversal u/s 19 5(c) of the TNVAT Act - 60,427 93,576 - - Refund Contested (E+F+G+H) 9,081 32,81,246 23,03,865 28,00,812 74,660 References Para Number of the Affidavit Page Number of the Index dated 24.10.2019 (Impugned Order)
5. The matter was adjourned on 29.11.2022 after directing the learned Additional Government Pleader, who appears for the State, to produce the records relating to and culminating into MoU dated 07.07.2008, entered into between the State of Tamil Nadu and the petitioner. The direction was given specifically to understand the role played by the Commercial Taxes Department in such matters.
6. Today, letter bearing No.7916/C1/2021-2 dated 01.12.2022 is placed before me wherein the Secretary to Government conveys to the Principal Secretary/Commissioner of Commercial Taxes Department the
position that refund is liable to be granted by the Commercial Taxes Department under MoU dated 07.07.2022, without reference to the provisions of the law relating to ITC. Mr.Prasanth Kiran, learned Government Advocate, would convey that the Commercial Taxes Department accedes to this position.
7. In light of the above, nothing further survives in these matter and these writ petitions are allowed, to the extent as above. Let the refunds be paid over expeditiously. No costs.
02.12.2022 ska Index : Yes/No Speaking Order/Non speaking Order To 1.Joint Commissioner (ST) MoU Cell SIPCOT Premises Chennai-600 008.
2.The Managing Director SIPCOT Ltd., Egmore, Chennai 600 008.
3.The Assistant Commissioner (ST) Oragadam Assessment Circle Padapai-601 301.
4.Commissioner of State Taxes Chepauk, Chennai 05.
5.Government of Tamil Nadu Represented Through its Finance Secretary Tamil Nadu Secretariat, Chennai 600 009.
DR.ANITA SUMANTH,J.
Ska W.P.Nos.30970, 30974, 30977, 30972, 30980, 30971, 30973, 30978, 30979 & 30975 of 2019 02.12.2022