2021 (7) TMI 864 - HC - GST

Petition Granted: Relief on Notifications Entries & IGST Refund

Lakhpat Trading And Industrys Private Ltd., Ameet Bhandarri Versus Union Of India, Goods And Service Tax Council, Dy. Commissioner (Adm.), GST Commercial Taxes

The Court disposed of the petition by granting reliefs related to specific entries in Notifications and refund of IGST paid. The Court noted that the ... Constitutional Validity - Section 9 of the Constitution (One Hundred and First Amendment) Act, 2016 - Serial No. 9(ii), its proviso & para No. 4 of the Explanation in Notification No. 8/2017-Integrated Tax (Rate) dated 28.06.2017 - Entry 10 of the Notification No. 10/2017-Integrated Tax (Rate) dated 28.06.2017 - levy of Integrated-tax / IGST - services by way of transportation of goods by vessel from a place outside India, up to custom station of clearance of India - ‘Ocean Freight services - reverse charge mechanism - deeming fiction of equating import of goods & services into India with inter-state trade & commerce - ‘Importer’ within meaning of Section 2(26) of the Custom Act, 1962 deemed as ‘recipient’ of service - HELD THAT:- Reliance placed in the case of MOHIT MINERALS PVT LTD VERSUS UNION OF INDIA & 1 OTHER [2020 (1) TMI 974 - GUJARAT HIGH COURT] where it was held that impugned Notification No.8/2017 – Integrated Tax (Rate) dated 28th June 2017 and the Entry 10 of the N/N.10/2017 – Integrated Tax (Rate) dated 28th June 2017 are declared as ultra vires the Integrated Goods and Services Tax Act, 2017, as they lack legislative competency. Both the Notifications are hereby declared to be unconstitutional. This petition is disposed of in terms of the decisions given by the Gujarat High Court in Mohit Minerals Private Limited. Issues:1. Challenge to the constitutionality of certain provisions of the Constitution (One Hundred and First Amendment) Act, 2016 and IGST Act, 2017.2. Request for quashing of specific entries in Notifications related to Integrated Goods and Services Tax Act, 2017.3. Claim for refund of Integrated Goods and Service Tax (IGST) paid.4. Direction to restrain respondents from charging tax on an artificial basis.5. Seeking production of records and any other just order.Analysis:1. Challenge to Constitutionality:The petitioners sought to strike down Section 9 of the Constitution (One Hundred and First Amendment) Act, 2016 and Sections 7(2) & 7(4) of the IGST Act, 2017. They argued that these provisions were enacted outside the legislative competence of Parliament and contrary to Supreme Court decisions. The petitioners also challenged certain entries in Notifications related to IGST Act, claiming they were ultra vires and suffered from excessive delegation.2. Quashing of Specific Entries in Notifications:The petitioners requested the quashing of specific entries in Notifications related to IGST Act, alleging that they were beyond legislative competence, ultra vires the Act, and involved excessive delegation. They specifically mentioned impugned entries and sought their annulment.3. Claim for Refund of IGST Paid:The petitioners pressed for a refund of IGST paid on Ocean Freight services on a reverse charge mechanism basis. They requested the respondents to refund the IGST amount collected and allow the availment of accumulated Input Credit. The petitioners relied on decisions by the Gujarat High Court to support their claim for a refund.4. Restraint on Charging Tax on Artificial Basis:The petitioners sought a direction to restrain the respondents from charging tax or duty on an artificial basis. They urged the respondents to recover taxes based on the actual transaction value, emphasizing the need for fair and legal taxation practices.5. Production of Records and Other Orders:Additionally, the petitioners requested the production of records related to specific Notifications. They also sought any other just and proper order or direction deemed fit by the Hon'ble Court. The petitioners further requested the grant of costs for the petition.In the judgment, the Court noted that the petitioners were only pressing for reliefs related to specific entries in Notifications and refund of IGST paid. The Court observed that the issues raised by the petitioners were covered by decisions of the Gujarat High Court. The respondents did not contest the applicability of the Gujarat High Court decisions. The Court referred to the Gujarat High Court judgments in similar cases and disposed of the petition in line with those decisions.