Case Title | Torrent Power Ltd vs Union of India |
Court | Gujarat High Court |
Honorable Judges | Justices N.V. Anjaria and Bhargav D. Karia |
Citation | 2022 (8) GSTPanacea 127 HC Gujarat R/SPECIAL CIVIL APPLICATION NO. 2603 of 2022 |
Judgement Date | 04- August- 2022 |
Council for Petitioner | UCHIT N SHETH |
Council for Respondent | PRIYANK P LODHA |
The High Court of Gujarat, Ahmedabad bench of Justices N.V. Anjaria and Bhargav D. Karia, has held that the competent authority of the respondents shall verify the amount of refund and grant such refund of the amount of IGST paid by the petitioner pursuant to the Entry No.10 of the notification.
FACTS OF THE CASE
The petitioner, which is a Public Limited Company and registered under the GST Act is engaged in the business of importing natural gas. When the goods are imported by the petitioner Company inside the country, bill of entry for home consumption is filed by the petitioner. At the time of clearance of the goods for home consumption, the petitioner company pays customs duty, countervailing duty and other duties payable on the total value of goods.
The IGST empowers the Government to specify the categories of supply of goods or services or both, and the tax on such goods or services shall be paid on reverse charge basis by the recipient of such goods or services. The category of supply of services is mentioned in Entry No.10 of the Reverse Charge Notification.
By filing the present petition under Article 226 of the Constitution of India, the petitioner prayed to direct the respondent authorities to grant refund of the amount of GST and interest thereon which was paid by the petitioner in view of Entry No. 10 of the Notification No. 10 of 2017 dated 28.06.2017. With the commencement of levy of Goods and Services Tax under the law with effect from 1.7.2017, the Notification No. 8 of 2017 dated 28.6.2017 provided that the IGST at the rate of 5% shall be levied on inter-state supply of services when the goods are transported in a vessel etc.. Another Notification No. 10 of 2017 dated 28.6.2017 came to be issued notifying that in respect of services supplied by a person located in the non-taxable territory by way of transportation of goods by vessel from a place outside India upto the Custom Clearance Station in India, the entire IGST shall be paid on the reverse charge basis by the importer.
While the various contentions are raised in the petition, it is stated that the aforementioned Notification Nos. 8 of 2017 and 10 of 2017 both dated 28.6.2017 read with corrigendum dated 30.6.2017 came up for consideration for their validity before this court
COURT HELD
The Court took the reference of the case ADI Enterprises vs. Union of India being Misc. Civil Application No. 1 of 2020 in Special Civil Application No. 10479 of 2019, wherein the question was about refund of the IGST paid pursuant to the aforementioned Notifications. In ADI Enterprises (supra) the court held that “Entry No.10 of Notification No.10/2017- IGST (Rate) dated 28.6.2017 as ultra vires the Act. He would further submit that during the pendency of the present application, Civil Appeal No.1390 of 2022 and allied appeals preferred at the instance of the respondents also came to be dismissed by judgment and order dated 19.5.2022 passed by Hon’ble Apex Court. Further, the court held that they are of the opinion that the present application requires consideration and hence, the same is allowed. The respondents are hereby directed to grant refund of the amount of IGST already paid by the applicants pursuant to the Entry No.10 of Notification No.10/2017-IGST (Rate) dated 28.6.2017 along with statutory rate of interest on such refund”.
Resultantly, the claim for refund of the petitioner towards IGST is liable to be favourably considered. The competent authority of the respondents shall verify the amount of refund and grant such refund of the amount of IGST paid by the petitioner pursuant to the Entry No.10 of the above notification within eight weeks from the date of receipt of this order along with the statutory rate of interest.
ANALYSIS OF THE JUDGEMENT
By noticing the above order we analyse that the Entry No.10 of Notification No.10/2017-IGST (Rate) dated 28.6.2017 issued under the Integrated Goods and Services Tax Act, 2017 of the Reverse Charge Notification has been declared as ultra vires to the act.
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