Hydac India Pvt. Ltd vs The Union Of India Through The ...
2023 Latest Caselaw 925 Bom

                      Trupti                          1            a group of refund issue .doc

                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TRUPTI
SADANAND
                              ORDINARY ORIGINAL CIVIL JURISDICTION
BAMNE
Digitally signed by
TRUPTI SADANAND
BAMNE
                                     WRIT PETITION NO. 2453 OF 2022
Date: 2023.02.01
19:08:48 +0530

                      Palo Alto Networks (India) Private Limited    ...      Petitioner
                            versus
                      The Additional Commissioner
                      Office of Commissioner CGST and
                      Central Excise Appeals II and Ors.            ...      Respondents

                                                 WITH
                                     WRIT PETITION NO. 1495 OF 2021
                      Vikas Laboratories Pvt. Ltd.                  ...      Petitioner
                            versus
                      Union of India & Ors.                         ...      Respondents

                                                 WITH
                                     WRIT PETITION NO. 3932 OF 2021
                      Kanu Krishna Corporation and Anr.             ...      Petitioners
                           versus
                      The Union of India & Ors.                     ...      Respondents

                                                 WITH
                                     WRIT PETITION NO. 1690 OF 2022
                      I- Work Solutions                             ...      Petitioner
                            versus
                      Dy. Commissioner of State Tax
                      (E- 905) & Anr.                               ...      Respondents
                                                 WITH
                                     WRIT PETITION NO. 4852 OF 2022

                      Vistex Asia Pacific Pvt. Ltd.                 ...      Petitioner
                            versus
                      Union of India & Ors.                         ...      Respondents
 Trupti                          2           a group of refund issue .doc


                         WITH
          CIVIL WRIT PETITION NO. 6732 OF 2021
Hydac India Pvt. Ltd.                        ...      Petitioner
     versus
The Union of India & Ors.                    ...      Respondents

                               ......
Mr.Rohan Shah with Ms.Shareen Gupta, Mr.Srisabari Rajan,
Ms.Surabhi Prabhudesai and Mr. Tanay Vyas i/b. J. Sagar Associates
for the Petitioner in WP No. 2453 of 2022.

Mr. H.G.Dharmadhikari with Ms.Lalita Phadke for the Petitioner in
WP No. 1495 of 2021.

Mr. Ishaan Patkar with Ms. Chaitali Raul i/b. Ms. Jindagi Shah for
the Petitioner in WP No. 3932 of 2021.

Mr.Ishaan Patkar with Ms.Chaitali Raul i/b. Mr. Jayesh Rathod for
the Petitioner in WP No. 1690 of 2022.

Mr.Bharat Raichandani with Mr. Rishabh Jain i/b. UBR Legal
Advocates for the Petitioner in WP No. 4852 of 2022.

Mr.Prakash Shah with Mr. Jas Sanghavi i/b. PDS Legal for the
Petitioner in WP No. 6732 of 2021.

Mr. J.B.Mishra with Ms.Sangeeta Yadav for the Respondent in WP
No. 2453 of 2022.

Mr. Sham Walve with Mr.Saket Ketkar for the Respondent in WP
No. 1495 of 2021.

Mr.Pradeep Jetly, Senior Advocate with Mr.Dhananjay Deshmukh
for the Respondent in WP No. 3932 of 2021.
 Trupti                              3            a group of refund issue .doc

Ms. Jyoti Chavan, AGP for the State in WP No. 1690 of 2022.

Mr. Ram Ochani for the Respondent in WP No. 6732 of 2021.
                              ......
                                 CORAM : NITIN JAMDAR &
                                         ABHAY AHUJA, JJ.

DATE : 30 JANUARY 2023

P.C. :-

In these petitions, the Petitioners have sought a prayer as regards the refund of the tax paid. The Petitioners are before us because the Goods and Services Tax Tribunal is not functional. The Respondents contend that as and when the Tribunal would be functional, the Petitioners can approach the Tribunal as regards their prayers and since what is sought is only a refund, there is no urgency nor there can be any interim order.

2. In Writ Petition No.2453 of 2022, we had passed a detailed order on 1 December 2022, which reads thus :

" Heard the learned Counsel for the parties.

2. The Petitioner has challenged the order dated 23 December 2021 passed by the Commissioner, CGST and Central Excise (Appeals), Mumbai, whereby the Appeal filed by the Petitioner challenging the Order-in- Original dated 4 December 2019 by the Assistant Commissioner, CGST rejecting the claim of the Petitioner for refund was dismissed.

Trupti 4 a group of refund issue .doc

3. The Petition was placed on board for hearing today so that the parties could circulate their summary of propositions. Detailed reply on merits is filed by the Respondents. However, the learned Counsel for the Respondents has tendered the written submissions only on the preliminary objection and not on merits contending that the Writ Petition under Article 226 of the Constitution of India should not be entertained to challenge the order passed by the Commissioner (Appeals) in view of the fact that the remedy of the Tribunal is available under Section 109 of the Central Goods & Service Tax Act, 2017. We note that the reply filed by the Principal Commissioner of CGST and Central Excise, Mumbai has dealt with the matter on merits in extensio and as regards preliminary objection it is stated only in one line that the Petitioner has remedy to file statutory appeal. This preliminary objection is expanded in the written submissions filed by the Advocate to take a stand that the Petition should not be heard on merits. These written notes are not signed by the Principal Commissioner.

4. The impugned order states that as against the impugned order the Petitioner has remedy of approaching the Tribunal under Section 112 of the Act of 2017. It is an admitted position that the Tribunal is not constituted as of today.

5. The Advocate for the Respondents relied on the decision of the Hon'ble Supreme Court in the case of Assistant Commissioner of State Tax Trupti 5 a group of refund issue .doc

and Ors. V/s. M/s. Commercial Steel Limited 1 which is pressed in service during the argument with seriousness contending that the Hon'ble Supreme Court has held that even though the Tribunal is not constituted, the Writ Petition should not be entertained. The learned Counsel for the Petitioner has pointed out that decision of the Hon'ble Supreme Court was in the facts where the Petitioner had directly approached the High Court under Article 226 of the Constitution of India even without exhausting the remedy of appeals to the Appellate Authority under Section 107 of the Act of 2017 and the order was not rendered in the context of absence of the Tribunal. The learned Counsel for the Petitioner also points out that in this case the Petitioner has availed of the remedy under Section 107 of the Act of 2017 to the Appellate Authority which is available.

6. The learned Counsel for the Petitioner states that this issue has been squarely dealt with by the Division Bench of Telangana High Court in the case of M/s. Appario Retail Private Limited v/s. The Union of India, through its Revene Secretary, Department of Revenue, Ministry of Finance, New Delhi and Ors.2, wherein in the identical circumstances where the petitioner was seeking a refund and had challenged the order passed in the appeal, without there being any Tribunal, the Division Bench of Telangana High Court observed in paragraph 51 as under :-

1 2021 Lawsuit(SC) 702 2 2021(11) TMI 153 Trupti 6 a group of refund issue .doc

"51. Now, turning to the issue of maintainability of the writ petition, though an effective remedy of appeal to the Appellate Tribunal is provided under Section 109 of the CGST Act, it is an admitted fact that the said Tribunal has not yet been constituted, though more than 3 years have elapsed after the CGST Act has been introduced. Thus, the Petitioner cannot be compelled to wait for eternity to agitate its claim seeking refund of the amount to which it is entitled to under the statute and also blocking its funds affecting its cash flows, merely because of existence of (non functional) alternate forum/remedy on paper, by not invoking the jurisdiction under Article 226 of the Constitution of India. Further, mere existence of alternative remedy is no bar for invoking the jurisdiction under Article 226 of the Constitution of India, when right to carry on business is being impeded, resulting in violation of fundamental right as guaranteed under Article 19(1)(g) of the Constitution of India."

(emphasis supplied) We are not informed whether the order passed by the Telangana High Court has been challenged by the Union of India higher nor we are shown any view taken by any Court that even though the Tribunal is not made functional, no Writ Petition should be entertained.

Trupti 7 a group of refund issue .doc

7. The learned Counsel for the Respondents, who is representing the Union of India, is unable to inform us what is the remedy for the Petitioner. The Advocate for the Respondents has sought to contend that though there is no Tribunal, nor it can be committed when it will be set up in near future, the position that the Petitioner is remedyless, is appropriate. Therefore, it is necessary for us to know whether the Union of India has given such instructions to the Advocate.

8. The Central Board of Indirect Taxes and Customs will file an affidavit in this Petition as to whether the stand taken by the Advocate for the Respondents and pressed seriously in the argument that the position that the Petitioner is remedyless till the tribunal is made functional, is appropriate, is on the instructions of the Respondent - Union of India and as to whether the judgment and order passed by the Telangana High Court in the case of M/s. Appario Retail Pvt. Ltd. is challenged.

9. Stand over 23 January 2023. The affidavit to be filed before the next date. To be heard along with Writ Petition No. 10883 of 2019 where the notice is issued to the Central Board of Indirect Taxes and Customs on similar issue".

3. As regards affidavit to be filed pursuant to para 8 of the order dated 1 December 2022, the learned Counsel for the Respondents state that the same will be filed before the next date. Trupti 8 a group of refund issue .doc

4. To hear the parties further on the issue highlighted in the order dated 1 December 2022, we place these petitions on board on 8 February 2023 under the caption "For Directions."

     ABHAY AHUJA, J.                            NITIN JAMDAR, J.