ORDER

( PER : HONOURABLE MR. JUSTICE DEVAN M. DESAI )

Heard learned advocate Mr. Hardik P. Modh for the petitioner and learned advocate Mr. Priyank Lodha for the respondents.

2. The following prayers are made in the present petition,

“(i) This Hon’ble Court may be pleased to issue a writ of mandamus directing the learned respondents to grant refund of the amount of IGST already paid by the petitioner pursuant to the impugned Entry No.10 of Notification No.10/2017-IGST (Rate) dated 28th June, 2017 alongwith appropriate interest on such refund;

(ii) This Hon’ble Court may be pleased to issue a writ of Certiorari, or a writ in the nature of Certiorari or any other appropriate writ, order or direction leading to issuance of the order Nos.ZO2401210054368 dated 7th January 2021 (Annexure – H1) and order No.ZO2401210054457 dated 7th January, 2021 (Annexure H2) passed by respondent No.2, and after going through into legality and validity of propriety direct to quash and set aside the said orders dated 7th January, 2021 issued by the respondent No.2;

(iii) This Hon’ble Court be pleased to issue a writ of Certiorari, or a Writ in the nature of Certiorari or any other appropriate writ, order or direction leading to issuance of Deficiency Memo for the Month of November, 2019 dated 9th December, 2020 (Annexure F3), October 2018 dated 4.12.2020, November, 2018 dated 4.12.2020, February, 2019 dated 4.12.2020, March, 2019 dated 4.3.2020, July, 2019 dated 9.12.2020 and October, 2019 dated 9.12.2020 (Annexure F6) issued by respondent No.3 and after going through into legality and validity of property, the said Deficiency Memos dated 4th December, 2020 and 9th December, 2020 (Annexure F3 and F6) may kindly quashed and set aside;

(iv) that this Hon’ble Court be pleased to issue a Writ of Mandamus, or a Writ in the nature of Mandamus, or any other appropriate writ, order or direction to the respondents to enable the petitioners to file the refund applications seeking refund of Ocean Freight for the period from June, 2021, July, 2021 and October, 2021 and sanction the refund claim for the above period of three months including the period from December, 2017 to May, 2020 with interest in terms of the provisions of Integrated Goods and Service Tax Act, 2017 read with Central Goods and Service Tax Act, 2017; ”

2.1 The relevant entries of the impugned notifications provided thus,

“(a) Sr. No. 9(ii) of the Notification No. 8/2017-IT (Rate) dated 28.06.2017, which prescribes a rate of 5% IGST under the heading 9965 for the services provided or agreed to be provided by a person located in a non-taxable territory to a person located in a nontaxable territory by way of transportation of goods by a vessel from a place outside India up to the customs station of clearance in India.

(b) Sr. No.10 of the Notification No. 10/2017-IT (Rate) dated 28.6.2017, which makes the importer, as defined under Section 2(26) of the Customs Act, 1962, located in the taxable territory, as the person liable to pay GST in respect of the services by way of transportation of goods by a vessel from a place outside India upto the customs station of clearance in India.”

3. The petitioner M/s. ETC Agro Processing (India) Pvt. Ltd. is a private limited company registered under the provisions of the Companies Act, 1956 and in the State of Gujarat, is inter alia engaged in importing and processing / trading in wide range of pulses, inter alia including toor dal, matar dal, kabuli chana, besan from its premises located near Asodar Crossing, Vasad – Asodar Road, At Asodar – 388307, District Anand, Gujarat.

3.1 The petitioner was holding registration No.24AABCE9812E1ZX under the provisions of Central Goods and Services Tax Act, 2017.

3.2 It is the case of the petitioner that during the period from January, 2018 till June, 2020, the petitioner paid IGST amounting to Rs.1,69,03,829/- on the ocean freight charged by the foreign vessel provider to the overseas supplier for the transportation of goods upto the customs clearance destination in India.

4. 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. This court in Mohit Minerals Pvt. Ltd. vs. Union of India being Special Civil Application No. 726 of 2018 decided on 23 rd January, 2020 held the said notifications to be unconstitutional and ultra vires the statute. The decision has been followed in Gokul Agro Resources Ltd. vs. UOI [2020 (35) GSTL 82 (Guj.)], Bharat Oman Refineries Ltd. vs. Union of India [2020 (41) GSTL 292 (Guj.)] and in Comsol Energy Private Limited vs. State of Gujarat [TS-1241-HS(GUJ)-2020-GST].

4.1 The above position and law emanating from the decision of this court in Mohit Minerals Pvt. Ltd. (supra) could not be disputed by learned advocates for the parties. It may also be mentioned that similar issue came up for consideration before the co-ordinate Bench in 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. The court directed respondents to refund the amount of IGST already paid by the applicants pursuant to Entry No.10 of Notification No. 10 of 2017.

4.2 In ADI Enterprises (supra), the court recorded thus in para 3,

“Learned advocate appearing for the applicant would submit that the reason for filing the present application is that vires of Entry No.10 of Notification No.10/2017- IGST (Rate) dated 28.6.2017 issued under the Integrated Goods and Services Tax Act, 2017 was challenged by the applicant by way of captioned writ petition along with other identical writ petitions. The Division Bench of this Court vide judgment and order dated 23.1.2020 passed in the captioned writ petition along with other writ petitions allowed the writ petitions and declared 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.

4.2.1 The court thereafter directed in para 4 as under,

“In view of the above, we are of the opinion that the present application requires consideration and hence, the same is allowed in terms of prayer 6 (a). 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 within a period of four weeks from the date of submission of necessary documents by the applicants.”

4.2.2 The decision in Mohit Minerals Pvt. Ltd. (supra), it was stated, was taken to the Supreme Court and came to be confirmed in Civil Application No. 1390 of 2022 decided on 19.5.2022.

5. Thus, the notifications impugned in this petition have already been declared ultra vires. Therefore, the said prayer in this petition did not require any further consideration.

6. As far as the second limb of the prayer about refund of the amount of Rs.1,69,03,829/- paid by the petitioner as IGST on ocean freight of goods imported during January, 2018 till June, 2020 is concerned, the competent authority of the respondents is directed that if such amount of IGST has been collected by the authorities, the same shall be refunded to the petitioner within six weeks from the date of receipt of this order alongwith the statutory rate of interest.

7. The petition stands allowed and disposed of in terms of the above directions.