Delhi High Court
National Board Of Examination In ... vs Union Of India & Ors. on 16 April, 2024
Author: Vibhu Bakhru
Bench: Vibhu Bakhru
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 16.04.2024
+ W.P.(C) 1299/2023 & CM No.4926/2023
NATIONAL BOARD OF EXAMINATION
IN MEDICAL SCIENCES ..... Petitioner
versus
UNION OF INDIA & ORS. ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr Kashish Kumar Gupta and Mr Chetan
Kumar Shukla, Advs.
For the Respondents : Mrs Amrita Prakash, CGSC with Mr Vishal
Ashwani Mehta, Adv.
Mr Aditya Singla, SSC for CBIC with Ms
Charu Sharma, Advs.
Mr Rajeev Aggarwal, ASC along with Mr
Prateek Badhwar, Ms Shaguftha H. Badhwar
& Ms Samridhi Vats, Advs.
Ms. Anushree Narain, Standing Counsel with
Ms. Simran Kumari, Advs.
CORAM
HON'BLE MR JUSTICE VIBHU BAKHRU
HON'BLE MR JUSTICE AMIT MAHAJAN
JUDGMENT
VIBHU BAKHRU, J
1. The petitioner has filed the present petition impugning the
Refund Rejection Orders dated 29.06.2022 and 28.10.2022 (hereafter
the impugned orders) whereby, the petitioner's application for refund
of Goods and Services Tax (GST) filed under Section 54 of the Central
Goods and Services Tax Act, 2017 (hereafter the CGST Act) was
rejected.
2. The petitioner claims that directions be issued to the respondents
to sanction the refund of GST paid in respect of the Financial Year
2019-20. Additionally, the petitioner also claims interest on the refund
amount in accordance with law.
3. The petitioner also impugns the Circular [being Circular
No.151/07/2021-GST) dated 17.06.2021 as ultra vires the provisions of
entry at Serial No.66(a) read with Paragraph 2(y) of the Notification
No.12/2017-Central Tax (Rate) as well as the corresponding
notifications issued under the Delhi Goods and Services Tax Act, 2017
(hereafter the DGST Act).
4. The petitioner had filed a refund application dated 30.04.2022
under Section 54 of the CGST Act claiming a refund of ₹18,50,61,582/-
(₹14,99,12,229/- for tax and ₹3,51,49,353/- for interest) for Financial
Year 2019-20 on account of tax paid for the services provided by the
petitioner by way of conducting examinations including entrance
examinations. These services included conducting National Eligibility-
cum-Entrance Test (NEET) and examination services (excluding thesis
fee, caution money, training charges and other miscellaneous charges)
provided for Diplomate of National Board (DNB) and Fellow of
National Board (FNB) courses. It is stated that the petitioner did not
claim the refund for DNB course fee, service of conducting screening
tests and for accreditation services.
5. On 20.05.2022, the acknowledgment of the refund application
was issued by respondent no.6 under FORM GST RFD-02. On the same
date, that is on 20.05.2022, respondent no. 6 also issued a Show Cause
Notice (hereafter SCN), proposing to cancel the petitioner's registration
for the following reasons:
"As per the GST Act 2017, the refund on the said ground can
be claimed if the same is supported by assessment/provisional
assessment/ appeal/ any other order but in the instant case the
taxpayer has not uploaded any supporting orders but applied
for refund."
6. The petitioner was called upon to furnish a reply to the SCN till
04.06.2022 and was also afforded a personal hearing by respondent
no.6, however no date of such personal hearing was mentioned in the
SCN. The petitioner replied to the SCN on 02.06.2022 and stated its
reasons for depositing payment in FORM GST DRC-03.
7. The refund was rejected by the impugned rejection order dated
29.06.2022 with the following reasons:
"Whereas, the taxpayer has claimed the refund referring the
above mentioned CBIC circular and not produced any
assessment/ provisional assessment/appeal/ any other order in
support of claimed refund."
8. It is stated by the petitioner that the impugned refund rejection
order dated 29.06.2022 was decided without considering the
submissions of the petitioner and without granting any opportunity of
personal hearing to the petitioner.
9. The present petition is amongst a batch of petitions that were
heard together [being W.P.(C) No.1298/2023, W.P.(C) No.1300/2023
and W.P.(C) No.1303/2023] and W.P.(C) No.1298/2023 was heard as
the lead matter. The questions raised in the present petition are covered
by the decision rendered today in W.P.(C) No.1298/2023.
10. For the reasons stated in W.P.(C) No.1298/2023, the present
petition is also disposed of by setting aside the impugned orders and
remanding the matter to the appropriate authority for consideration
afresh in view of the observations made by this Court in W.P.(C)
No.1298/2023. [Neutral Citation No.2024: DHC:2995-DB]
VIBHU BAKHRU, J
AMIT MAHAJAN, J
APRIL 16, 2024
RK
