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2023-TIOL-1178-HC-PATNA-GST
Gobinda Construction Vs UoI
GST - Petitioners challenge the constitutional validity of Section 16(4) of the Act, 2017 which denies entitlement of Input Tax Credit (ITC) and contend that the same is violative of Articles 14 and 300A of the Constitution of India -Alternatively, the petitioners are seeking a declaration that the conditions as prescribed in Section 16(4) are merely procedural in nature and cannot override the substantive conditions for availing ITC prescribed under Section 16(1) and Section 16(2) of the said Acts -Petitioners are further seeking a declaration that GSTR-3B cannot be treated to be a return prescribed under Section 39(1) as it does not satisfy the parameters of a return contemplated under Section 39(1) of the said Act - They are also seeking a declaration that Rule 61(5) of the CGST Rules, 2017 , as amended retrospectively prescribing Form GSTR-3B as a return under Section 39(1) of the CGST Act is ultra vires Section 39(1) of the CGST Act itself.
Held: There is no gainsaying that language of Section 16(4) of the CGST/BGST Act, is plain and unambiguous - Doctrine of reading down applies only when general words used in a statute or regulation should be construed in a particular manner so as to save its constitutionality - Sub-section (4) of Section 16 of the CGST/BGST Act, which, in no unambiguous terms, provides that a registered person shall not be entitled to take ITC in respect of any invoice or debit note for supply of goods or services or both after 30th day of November (post amendment), following the end of financial year to which such invoices or debit note pertain or furnishing of the relevant annual return, whichever is earlier - The language of Section 16 of the CGST/BGST Act suffers from no ambiguity and clearly stipulates grant of ITC subject to the conditions and restrictions put thereunder -ITC is not unconditional and a registered person becomes entitled to ITC only if the requisite conditions stipulated therein are fulfilled and the restrictions contemplated under sub-section (2) of Section 16 do not apply - One of the conditions to make a registered person entitled to take ITC is prescribed under sub-section (4) of Section 16 - The right of a registered person to take ITC under sub-section (1) of Section 16 of the Act becomes a vested right only if the conditions to take it are fulfilled, free of restrictions prescribed under sub-section (2) thereof - The provision under sub-section (4) of Section 16 is one of the conditions which makes a registered person entitled to take ITC and by no means sub-section (4) can be said to be violative of Article 300-A of the Constitution of India -Bench is not convinced with the submissions of the petitioners to read down the provision of sub-section (4) of Section 16 of the CGST/ BGST Act - There is always a presumption of constitutional validity of a legislation, with the burden of showing the contrary, lying heavily upon someone who challenges its validity -Fiscal legislation having uniform application to all registered personscannot be said to be violative of Article 19(1)(g) of the Constitution and the question of such statutory provision being violative of Article 302 of the Constitution and in teeth of Article 13 of the Constitution of India does not arise at all -Submission has been made, though feebly, that this Court may declare the requirement of sub-section (4) of Section 16 as directory and not mandatory - The said submission is not at all tenable in view of the clear language used in Section 16 of the Act - The concession of ITC under sub-section (1) of Section 16 of the CGST/ BGST Act is dependent upon the fulfilment of requisite conditions laid down under various provisions including sub-section (4) thereof -Bench is of the considered opinion that sub-section (4) of Section 16 of the CGST/ BGST Act are constitutionally valid and are not violative of Articles 19(1)(g) and Article 300-A of the Constitution of India - The said provision is not inconsistent with or in derogation of any of the fundamental right guaranteed under the Constitution of India -Writ applications are accordingly dismissed: High Court [para 11, 21, 25, 26, 28, 29, 31, 36, 37]
- Petitions dismissed: PATNA HIGH COURT
2023-TIOL-1177-HC-DEL-CUS
AJ Gold And Silver Refinery Vs Asstt. CC
Cus - Petitioner has approached this Court seeking the issuance of an appropriate writ commanding the respondents to attend to the pending drawback claim amounting to Rs. 2,15,48,344/- and for the aforesaid amount being released along with applicable interest - It is the stand of the respondent that since the petitioner did not pay any Basic Customs Duty on the imported articles and merely paid the additional duty as imposed in terms of Section 3 of the Customs Tariff Act, 1975, it would not be entitled to the drawback benefits as claimed.
Held : Rule 2(a) of the Drawback Rules, 1995 while defining "drawback" provides that the same would be relatable to goods manufactured in India and exported and the concept of "drawback" being the rebate of "duty" or "tax" chargeable on any imported material or excisable materials in the manufacture of such goods - It is not possible to view the levy under Section 3 of the Tariff Act as not falling within the ambit of "duty" or "tax" - In terms of Rule 3 of the Drawback Rules, 1995, an exporter is entitled to claim a drawback on the export of goods at such amount or rates as may be determined by the Union Government - The Drawback Rules, 1995 thus employ the words "duty" and "tax" without confining the same either to the Customs Act or the Central Excise Act, 1944 - This would inevitably lead the Bench to conclude that as long as goods have suffered a "tax" or "duty" at the time of import, the claim for drawback at the stage of export would be available - Condition No. 6 of the Drawback Notification would also not detract from the claim of the petitioner for drawback benefits - Since in the present case, an All India Rate had been prescribed, there was no corresponding obligation placed upon the petitioner to independently prove the payment of customs or central excise duty or for that matter service tax - Once the petitioner had paid the duties as contemplated under Section 3 of the Tariff Act, it could not be possibly contended that the goods were imported "duty free" - Free shipping bills were duly amended on 27 February 2015 whereafter the petitioner applied for release of drawback benefits on 06 May 2015 - In terms of Section 75A of the Customs Act, interest becomes payable upon the expiry of a period of one month from the date of making of an application seeking drawback till such time as the payment is ultimately affected. In the facts of the present case, therefore, the respondents are also liable to pay interest which would commence upon the expiry of the period of one month from 06 May 2015 and would run till such time as the amount is ultimately paid - The writ petition shall consequently stand allowed - The respondents are hereby commanded to attend to the claim of the petitioner for disbursement of drawback benefits as claimed and release the same with due expedition - The respondents are also held liable to pay interest thereon to be computed in accordance with Section 75A of the Customs Act: High Court [para 15, 16, 18, 21, 22]
- Petition allowed: DELHI HIGH COURT
2023-TIOL-1176-HC-AHM-VAT
Shreenath Plastopack Pvt Ltd Vs State of Gujarat
Whether since efficacious alternative remedy is provided under Gujarat VAT Act, no writ would be maintenable - YES: HC
- Assesse's Petition disposed of: GUJARAT HIGH COURT |
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