Madras High Court
Viterra India Pvt Ltd vs The Union Of India on 14 August, 2024
Author: Mohammed Shaffiq
Bench: Mohammed Shaffiq
W.P(MD)No.19314 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 14.08.2024
CORAM
THE HONOURABLE MR JUSTICE MOHAMMED
SHAFFIQ
W.P(MD)No.19314 of 2024
and
W.M.P(MD)Nos.16380 and 16382 of 2024
Viterra India Pvt Ltd.,
Having its Office at
41, Toovipuram,
First Street, Thoothukudi,
Tamil Nadu 628 002. ... Petitioner
Vs.
1.1.The Union of India,
through the Secretary,
Ministry of Commerce Department
of Commerce,
Udyog Bhavan, North Block,
New Delhi-110 001.
2.The Commissioner of GST and Central
Excise (Appeals)
Having his office at
Circuit Office, Madurai
No.4, Lal Bahadur Shastri Marg.
Central Revenue Buildings,
1
https://www.mhc.tn.gov.in/judis
W.P(MD)No.19314 of 2024
Madurai-625 002.
3.The Joint Commissioner of GST and Central
Excise (Appeals)
Having his Office at
Circuit Office, Madurai
No.4, Lal Bahadur Shastri Marg,
Central Revenue Buildings,
Madurai-625 002.
4.The Commissioner of CGST &CE., Tuticorin,
Circuit Office, Madurai,
No.4, Lal Bahadur Shastri Marg,
Central Revenue Buildings,
Madurai-625 002.
5.The Assistant Commissioner of CGST & CE,
Tuticorin Circuit Office, Madurai,
No.4, Lal Bahadur Shastri Marg,
Central Revenue Buildings,
Madurai-625 002. ...Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution
of India, praying for the issuance of a Writ of Certiorarified
Mandamus, to call for the records relating to the impugned order in
appeal dated 03.12.2021 and rectification order dated 28.06.2022
rejecting the appeal order passed by the respondent Nos.2 and 3
respectively and quash the same and direct the respondents to
forthwith sanction and grant the refund of Rs.13,147/- along with
appropriate interest for the month of July 2019.
2
https://www.mhc.tn.gov.in/judis
W.P(MD)No.19314 of 2024
For Petitioner : M/s.Jas Sanghavi
For R1 : Mr.R.Senthil Kumar
For R2 to R5 : Mr.R.Nandhakumar
ORDER
This Writ Petition is filed to quash the order in appeal dated
03.12.2021 and rectification order dated 28.06.2022 passed by the
respondent Nos.2 and 3 respectively and direct the respondents to
forthwith sanction and grant the refund of Rs.13,147/- along with
appropriate interest for the month of July 2019.
2. It is submitted by the learned counsel for the petitioner as
well as the learned counsel for the respondents that the issue
stands covered by the judgment of the Hon'ble Supreme Court in
2022(61)GSTL 257 (SC) confirming the judgment of Gujarat High
Court, wherein it was held that the levy of GST on Ocean Freight
Services vide notification 8/2017-IT(Rate), dated 28.06.2017 and
the Entry of the Notification No.10 of 2017-IT(Rate), dated
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28.06.2017 was struck down. The relevant portion of the judgment
is extracted hereunder:
“3.The issue raised in this Writ petition was
already allowed in favour of the assessee by the
Hon'ble Gujarat High Court in the case of Mohit
Minerals V. Union of India, reported in [2020 (33)
GSTL 321 (Guj.) whereby the Notification 8/2017-
IT(Rate) dated, 28.06.2017 and the Entry of the
Notification No.10 of 2017-IT(Rate), dated 28.06.2017
was struck down. Subsequently the Department
preferred SLP before the Hon'ble Supreme Court,
whereby the Civil Appeal was dismissed vide order
dated 19.05.2022 reported in 2022 (61) GSTL 257 (SC)
confirming the judgment of Gujarat High Court
holding that the levy of GST on Ocean Freight Services
vide the notification stated supra is ultra vires section
8 of the CGST Act as well as section 5(3) of the IGST
Act and accordingly no GST is leviable on such
service.
4. Based on the aforesaid judgment, the
petitioner had filed rectification application dated
30.05.2022 under section 161 of CGST to rectify the
Order-in-Original dated 03.12.2012, but the
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respondents rejected the application vide order dated
28.06.2022, stating that the petitioner is having remedy
before the Goods and Service Tax Appellate Tribunal.
However the Tribunal has not been constituted and
thus the Tribunal is not in existence. Hence the
petitioner had filed the present writ petition.
5. It is an admitted fact that the issue of levy of
GST on Ocean Freight Services is settled by the
Hon’ble Supreme Court and the Notification 8/2017-
IT(Rate) dated, 28.06.2017 and the Entry of the
Notification No.10 of 2017-IT(Rate), dated 28.06.2017
is struck down as ultra vires. In such circumstances the
respondents are not empowered to collect GST for the
Ocean Freight Services and consequently the
respondents are bound to refund the amount collected.
6. Therefore, the respondents are liable to refund
an amount of Rs.45,93,793/- and the respondents are
directed to refund the same. As far as the interest
portion is concerned, this Court is leaving open to the
parties to adjudicate the same.”
3. In view thereof, the Writ Petition is disposed of on the
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above terms. No costs. Consequently, connected miscellaneous
petitions are closed.
14.08.2024
NCC:Yes/No
Index:Yes/No
Internet:Yes/No
Ns
To:
1.1.The Union of India,
through the Secretary,
Ministry of Commerce Department
of Commerce,
Udyog Bhavan, North Block,
New Delhi-110 001.
2.The Commissioner of GST and Central
Excise (Appeals)
Having his office at
Circuit Office, Madurai
No.4, Lal Bahadur Shastri Marg.
3.The Joint Commissioner of GST and Central
Excise (Appeals)
Having his Office at
Circuit Office, Madurai
No.4, Lal Bahadur Shastri Marg,
Central Revenue Buildings, Madurai-625 002.
4.The Commissioner of CGST &CE., Tuticorin,
https://www.mhc.tn.gov.in/judis
Circuit Office, Madurai,
No.4, Lal Bahadur Shastri Marg,
Central Revenue Buildings,
Madurai-625 002.
5.The Assistant Commissioner of CGST & CE,
Tuticorin Circuit Office, Madurai,
No.4, Lal Bahadur Shastri Marg,
Central Revenue Buildings,
Madurai-625 002.
MOHAMMED SHAFFIQ, J.
https://www.mhc.tn.gov.in/judis
Ns
and
W.M.P(MD)Nos.16380 and 16382 of 2024
14.08.2024
https://www.mhc.tn.gov.in/judis
