2020 (8) TMI 568 - HC - GST

Court orders refund of IGST under unconstitutional Entry No.10, precedented by Mohit Minerals case.

The Court allowed the writ application, directing the respondents to refund the IGST amount paid by the government company under Entry No.10 of ... Claim of Refund with interest - Period of limitation - Ocean freight for the services provided by a person located in a non-taxable territory by way of transportation of goods by a vessel from a place outside India upto the customs stations of clearance in India - Benefit of N/N. 10/2017-IGST (Rate) dated 28.6.2017 - HELD THAT:- The Notification was a subject matter of challenge in a batch of writ applications, the lead matter being the MOHIT MINERALS PVT LTD VERSUS UNION OF INDIA & 1 OTHER [2020 (1) TMI 974 - GUJARAT HIGH COURT]. This Court in Mohit Minerals and allied petitions declared the Notification No.8/2017-Integrated Tax (Rate) dated 28th June 2017 and the Entry No.10 of the Notification No.10/2017-Integrated Tax dated 28th June 2017 as ultra vires the Integrated Goods and Services Tax Act, 2017 on the ground that the same lacked legislative competency. Both the Notifications referred to above were declared to be unconstitutional. The respondents are directed to sanction the refund and pay the requisite amount of IGST already paid by the writ applicant pursuant to the Entry No.10 of Notification No.10/2017-IGST dated 28th June 2017 declared to be ultra vires by this Court in Mohit Minerals - Petition allowed. Issues:Refund of IGST paid under Notification No.10/2017-IGST, Legislative competency of Notification No.10/2017-IGST.Analysis:The writ applicant, a government company, sought a writ of mandamus for a refund of IGST paid under Entry No.10 of Notification No.10/2017-IGST. The Court noted that the issue was similar to a previous case, Mohit Minerals, where the Notification was declared ultra vires due to lacking legislative competency. The matter concerned the levy of tax on Ocean freight under the Integrated Goods and Services Tax Act, 2017. The Court referred to the earlier judgment in Mohit Minerals where both Notification No.8/2017-Integrated Tax (Rate) and Entry No.10 of Notification No.10/2017-Integrated Tax were declared unconstitutional due to lacking legislative competency.The standing counsel for the respondents acknowledged that the issue in this case was covered by the decision in Mohit Minerals. Consequently, the Court allowed the writ application, directing the respondents to refund the IGST amount paid by the applicant under the now unconstitutional Entry No.10 of Notification No.10/2017-IGST. The respondents were instructed to initiate the refund process promptly and ensure payment within six weeks from the date of the order. The standing counsel was tasked with communicating the Court's decision to the relevant authorities.In conclusion, the Court's judgment granted the requested relief to the government company, emphasizing the unconstitutionality of the Notification under which the IGST was paid. The decision in Mohit Minerals set a precedent for this case, leading to the allowance of the refund claim and a directive for timely payment by the respondents.