TaxTMI 
TaxTMI 
TaxTMI 
2024 (9) TMI 539
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..... 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 federalism and harmony between the constituent units; (b) Neither does Article 279A begin with a non obstante clause nor does Article 246A state that it is subject to the provisions of Article 279A. The Parliament and the State legislatures possess simultaneous power to legislate on GST. Article 246A does not envisage a repugnancy provision to resolve the inconsistencies between the Central and the State laws on GST. The 'recommendations' of the GST Council are the product of a collaborative dialogue involving the Union and States. They are recommendatory in nature. To regard them as binding edicts would disrupt fiscal federalism, where both the Union and the States are conferred e....
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....e Department and therefore, collection was contrary to Article 265 of the Constitution of India. Therefore, the petitioner is entitled for refund together with interest at 6% from the date of payment of tax to the Department. 4. Learned counsel for the petitioner has placed reliance on the decision of the Division Bench of this Court in M/s.KTV Health Food Private Limited Vs. Union of India, in W.P.Nos.10330 of 2020 etc., batch dated 29.09.2022, 2022 (381) E.L.T. 66 and the decision of the Gujarat High Court in Cosmol Energy Pvt. Ltd. Vs. State of Gujarat, 2021 (55) GSTL 390 (Guj.) 5. Specifically, the learned counsel for the petitioner has placed reliance to Paragraph 6 of the second mentioned decision i.e., Cosmol Energy Private Limited's case (referred to supra), wherein it was observed that the revenue is obliged to refund the amount erroneously collected following the decision of the Hon'ble Supreme Court in State of Madhya Pradesh Vs. Bhailal Bhai and others, AIR 1964 SCC 1006. 6. Learned counsel for the petitioner has also placed reliance on the decision of the Hon'ble Supreme Court in Union of India Vs. Tata Chemicals Limited, (2014) 6 SCC 335. A specific ref....
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.... to a resident/ deductor who has deducted tax at source and deposited the same before remitting the amount payable to a non-resident/ foreign company." 7. Learned counsel for the petitioner has also drawn attention to the decision of the Punjab & Haryana High Court in Diwakar Enterprises Private Limited Vs. Commissioner of CGST, (2023) 5 Centax 256 (P&H). A specific reference was made to Paragraphs 14 and 15, wherein it was held as under:- "14. In the present case, as per the Department, the petitioner has deposited the impugned amount voluntarily and the proper procedure has been followed. But Article 265 of the Constitution of India lays down that collection of tax has to be by the authority of law. If tax is collected without any authority of law, the same would amount to depriving a person of his property without any authority of law and would infringe his right under Article 300A of the Constitution of India as well. In the present case, no receipt was given by the Proper Officer after accepting the impugned amount. Thus, the amount deposited by the petitioner under protest were liable to be refunded in view of the above mentioned judgments, as the petitioner has been depri....
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.... the petitioner was able to monetize the Input Tax Credit paid on reverse charge basis/mechanism that was availed by the petitioner. 14. It is further submitted that the petitioner itself is a registered private limited company under the respective GST Acts and is liable to pay tax and therefore, only the excess amount which could not be utilized can be ordered to be refunded and that there is no one-to-one correlation between tax paid by the petitioner and the tax adjusted towards the tax liability. 15. It is further submitted that the refund interest is to be paid strictly under Sections 56 and 57 of the respective GST Acts and therefore, the petitioner cannot claim any interest on the tax which was paid by the petitioner in respect of which, the petitioner had claimed Input Tax Credit, which is lying unutilized and the amount was reversed only on 17.07.2023. Hence, prays for dismissal of the writ petition. 16. I have considered the arguments advanced by the learned counsel for the petitioner and the learned Senior Standing Counsel for the respondent. 17. The refund tax paid by the petitioner on reverse charge basis has been sanctioned by the respondent vide impugned Order-in....