2023 (9) TMI 275

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....f the Constitution of India, the petitioner has prayed that a writ of prohibition or any other appropriate writ prohibiting respondents and their servants be issued against the show-cause notice dated 16.02.2023. 3. Facts in brief indicate that the petitioner is engaged in the manufacture and outward supply of goods and services i.e. automobile parts. The petitioner holds a GST registration. The office of the Assistant Commissioner of CGST, Rajkot conducted an audit of the petitioner company and issued a final audit report dated 05.08.2022. In the audit report, certain points were raised which included the question of short payment of IGST on ocean freight on certain goods imported during the financial years 2017-18, 2018-19 and 2019-20 on....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... 4. Mr. A.S. Tripathi, learned counsel for the petitioner would submit that the issue of levy of IGST on ocean freight is no longer a matter of debate in light of the decision in the case of Mohit Minerals Pvt. Ltd. (supra). 5. Mr. Nikunt Raval, learned counsel appearing for the respondents would submit that the petition challenging the show-cause notice is not maintainable. The show-cause notice is yet to be adjudicated. He would submit that it is open for the petitioner to satisfy the adjudicating authority with regard to the decision of the Apex Court in the case of Mohit Minerals Pvt. Ltd. (supra). He would submit that the judgement of the Gujarat High Court to the extent of terming the notification no. 8/2017 dated 28.06.2017 and not....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....a tax on the supply of a service which has already been included by the legislation as a tax on the composite supply of goods cannot be allowed. The conclusions recorded by the Apex Court in para 148 read as under: "(E) Conclusion 148 Based on the above discussion, we have reached the following conclusion: (i) The recommendations of the GST Council are not binding on the Union and States for the following reasons: (a) The deletion of Article 279B and the inclusion of Article 279(1) by the Constitution Amendment Act 2016 indicates that the Parliament intended for the recommendations of the GST Council to only have a persuasive value, particularly when interpreted along with the objective of the GST regime to foster cooperative fed....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... with Section 2(93) of the CGST Act, the import of goods by a CIF contract constitutes an "inter-state" supply which can be subject to IGST where the importer of such goods would be the recipient of shipping service; (iii) The IGST Act and the CGST Act define reverse charge and prescribe the entity that is to be taxed for these purposes. The specification of the recipient - in this case the importer - by Notification 10/2017 is only clarificatory. The Government by notification did not specify a taxable person different from the recipient prescribed in Section 5(3) of the IGST Act for the purposes of reverse charge; (iv) Section 5(4) of the IGST Act enables the Central Government to specify a class of registered persons as the recipie....