2021-TIOL-1334-HC-AHM-GST

Comsol Energy Pvt Ltd Vs State of Gujarat

IGST - Refund - Writ-applicant herein filed the refund claims of the Integrated Goods and Services Tax paid on the Ocean Freight under the reverse charge mechanism after the decision of this Court in the writ-applicant's own case which was connected with the main petition of Mohit Minerals (Pvt) Ltd. vs. Union of India and others - This Court, vide Order and Judgment dated 23.01.2019 = 2020-TIOL-164-HC-AHM-GST , held that the Notification No. 8/2017 - Integrated Tax (Rate) dated 28.06.2017 and the Entry No. 10 of the Notification No. 10/2017 under the Integrated Tax (Rate) dated 28.06.2017 lack legislative competency and the same were accordingly declared as unconstitutional - Upon filing of the refund claims, the respondent No. 3 issued the Deficiency Memo in both the claims separately on the premise that the refund claims were not filed within the statutory time limit as provided under Section 54 of the CGST Act inasmuch as Section 54 does not provide separate category for claiming refund of such amount, therefore, the present writ application.

Held:

+ Article 265 of the Constitution of India provides that no tax shall be levied or collected except by authority of law. Since the amount of IGST collected by the Central Government is without authority of law, the Revenue is obliged to refund the amount erroneously collected. [para 6]

+ Section 54 of the CGST Act is applicable only for claiming refund of any tax paid under the provisions of the CGST Act and/or the GGST Act. The amount collected by the Revenue without the authority of law is not considered as tax collected by them and, therefore, Section 54 is not applicable. In such circumstances, Section 17 of the Limitation Act is the appropriate provision for claiming the refund of the amount paid to the Revenue under mistake of law [para 7]

+ Issue is squarely covered by the decision of this Court in the case of Gokul Agro Resources Ltd. vs. Union of India = 2020-TIOL-691-HC-AHM-GST , wherein this Court directed the respondent to pass an appropriate order in the refund application preferred by the assessee without raising any technical issue, within a period of four weeks [para 11]

+ Writ-application succeeds and is hereby allowed - respondent is directed to process the refund claim filed in the prescribed form RFD-01 online portal for the month of February 2018 and March 2018 for an amount of Rs.93.54 lakh along with simple interest at the rate of 6% per annum. Exercise be undertaken at the earliest and completed by 17th August 2021. [para 13, 15]

- Petition allowed: GUJARAT HIGH COURT

2021-TIOL-1333-HC-MAD-GST

Sernephro Medical Services Vs Pr.CC

IGST - Petitioner has sought a mandamus directing the 2nd respondent being the Assistant Commissioner of Customs, IGST Refund Department, to settle and release the pending refund of IGST - Petitioner has, in fact, filed a representation as early as on 17.02.2020, seeking the same relief, for which there has been no response, therefore, the present writ petition.

Held: Legal issue in regard to eligibility to IGST has admittedly been decided in favour of the petitioner in M/s. Chaizup Beverages LLP - 2021-TIOL 953 HC-Mad-GST - Pre-conditions set out under Rule 96 of the Central Goods and Services Tax Rules, 2017 have to be complied with by the assessee concerned - Petitioner appears to, prima facie , have produced the above documents under cover of its communication dated 24.07.2018 - In any event, this is a question of fact that would have to be verified by the Assessing Authority - let the factual aspect of production of documents in terms of Rule 96 of the CGST Rules be looked into by Assessing Authority and orders passed prior to the next date of hearing on representation of the petitioner dated 17.02.2020 - Writ petition is disposed of: High Court [para 5]

- Petition disposed of: MADRAS HIGH COURT

2021-TIOL-1329-HC-MUM-GST

Ate Enterprises Pvt Ltd Vs UoI

GST/IGST   - Petitioner has prayed for a declaration that section 13(8)(b) and section 8(2) of the Integrated Goods and Services Tax Act, 2017 are   ultra vires   articles 14, 19, 245, 246, 246A, 269A and 286 of the Constitution of India and also   ultra vires   the provisions of the Central Goods and Services Tax Act, 2017, Integrated Goods and Services Tax Act, 2017 and Maharashtra Goods and Services Tax Act, 2017. 

Held:  Justice Ujjal Bhuyan, while allowing the petition in the case of Dharmendra M Jani [WP 2031 of 2018][ 2021-TIOL-1297-HC-MUM-GST ] took a view that the section 13(8)(b) of the Integrated Goods and Services Tax Act, 2017 is  ultra vires  the said Act besides being unconstitutional – However, Justice Abhay Ahuja has differed with this view and in his order dated 16th June 2021 [ 2021-TIOL-1326-HC-MUM-GST ] held that neither Section 13(8)(b) nor Section 8(2) of the IGST Act are ultra vires the IGST Act; that Section 13(8)(b) of the IGST Act is not ultra vires Section 9 of the CGST Act or MGST Act, 2017; that Section 13(8)(b) as well as Section 8(2) of the IGST Act are constitutionally valid and operative for all purposes; that the petition is required to be dismissed: High Court [para 2, 3]

- Difference of opinion: BOMBAY HIGH COURT

2021-TIOL-1332-HC-MAD-CUS

Tubeknit Fashions Ltd Vs DCC

Cus - Writ petition is filed challenging the order in original dated 27.03.2021 - Impugned order demands Duty Drawback for non-realisation of export proceeds - It is contended that sufficient opportunity of personal hearing has not been extended to the petitioner and therefore the respondent has committed an act of violation of principles of natural justice – Counsel for Revenue submits that exporter has not responded, in spite of several opportunities given to appear in person or through his authorised representative to produce evidence for the sale proceeds, therefore, the petitioner cannot now approach this Court with incorrect facts regarding the opportunities provided to the petitioner by the respondent to defend their case.

Held: Court is of the considered opinion that even in such circumstances the grievances if at all exists the same can be exhausted by filing an appeal before the appellate authority under the provisions of the Customs Act - However without exhausting the appellate remedy the present writ petition is filed by merely stating that the respondent has violated the principles of natural justice - Such legal grounds can be adjudicated by the appellate authority namely the Commissioner of Customs (Appeals) and, therefore, entertaining the writ petition at this juncture would deprive the litigant from availing the benefit of appellate remedy which is undoubtedly valuable and important - Writ petition stands dismissed: High Court [para 4, 6]

- Petition dismissed: MADRAS HIGH COURT

2021-TIOL-1331-HC-MAD-ST

Pentagon Industrial Services Vs ACST

ST - VCES, 2013 - Petitioner did not pay the minimum of 50% of the tax dues declared and, therefore, declaration was rejected - Petitioner disputes the said finding by stating that even opportunities were not given adequately to establish the case of the petitioner.

Held: All disputed question of facts are to be adjudicated in an appeal by the Appellate Authority, namely, Commissioner of Service Tax - Disputed question of facts deserve examination of documents and witnesses and such an exercise cannot be undertaken in writ proceedings by the High Court - Writ petition stands disposed of: High Court [para 3, 4, 9]

- Petition disposed of: MADRAS HIGH COURT

2021-TIOL-1330-HC-MAD-ST

N Sundararajan Vs UoI

ST - SVLDRS, 2019 - Petitioner prays for a mandamus directing the first respondent, Union of India, represented by Secretary to Government, Department of Revenue to accept payments to be made under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - Petitioner cites the difficulties caused by the on-going COVID-19 pandemic to justify the delay in making the remittances.

Held: Scheme requires payment in respect of the amounts quantified to be remitted within a period of 30 days from the date of receipt of Form 3, which in these cases would expire towards the end of January, 2020 and March, 2020 - Admittedly, the petitioner has not remitted the amounts quantified, but only made a part payment - As far as W.P.Nos . 14451 and 14497 of 2020, wherein Form 3 has been issued on 27.12.2019 and the 30 day period available for remittance is till January, 2020, the reliance upon the pandemic would not come to the aid of the petitioner - As far as W.P.No . 14454 of 2020, wherein Form 3 has been issued on 27.02.2020 and time was available till the end of March, 2020, the lockdown that was imposed on 25.03.2020 may come to the aid of the petitioner - W.P.Nos . 14451 and 14497 of 2020 are dismissed - W.P.No . 14454 of 2020 listed on 21.06.2021 for further hearing: High Court [para 4, 5, 6]

- Petition dismissed/Matter listed: MADRAS HIGH COURT