Judgment
WA No. 692 of 2025
1 2025:KER:31645
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 10TH DAY OF APRIL 2025 / 20TH CHAITHRA, 1947 WA NO. 692 OF 2025 AGAINST THE JUDGMENT DATED 28.06.2024 IN WP(C) NO.17111 OF 2021 OF HIGH COURT OF KERALA APPELLANT(S)/PETITIONERS :
SURABHI IMPORTS AND EXPORTS 11/469 A-10, SURABHI TRADE CENTRE, RAMANATTUKARA, KOZHIKODE REPRESENTED BY ITS MANAGING PARTNER, SRI. ATHEKKATTIL GOPALAN, PIN - 673633
BY ADVS. ANIL D. NAIR (SR.)
ADITYA UNNIKRISHNAN NIVEDITA A.KAMATH BINISHA BABY SARITHA K.S.
ARAVIND RAJAGOPALAN MENON
RESPONDENT(S)/RESPONDENTS :
1 UNION OF INDIA REPRESENTED BY SECRETARY, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, ROOM NO.46, NORTH BLOCK, NEW DELHI, PIN - 110001
2 GOODS AND SERVICE TAX NETWORK(GSTN), THROUGH ITS CHAIRMAN, EAST WING, 4TH FLOOR, WORLD MARK-1, AREO CITY, NEW DELHI., PIN - 110037
WA No. 692 of 2025
2 2025:KER:31645
3
CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS THROUGH ITS CHAIRMAN, NORTH BLOCK, NEW DELHI., PIN – 110001
4 THE DEPUTY COMMISSIONER OF STATE TAX, SPECIAL CIRCLE, CIVIL STATION, MALAPPURAM, PIN - 676505
BY SRI.PG JAYASHANKAR, SC
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA No. 692 of 2025
3 2025:KER:31645
DR. A.K. JAYASANKARAN NAMBIAR & EASWARAN S., JJ.
-------------------------------- W.A. No.692 of 2025 ------------------------------------------ Dated this the 10th day of April, 2025
JUDGMENT
Easwaran S.,J.
This intra court appeal is preferred by the appellant/writ petitioner against the judgment of the learned Single Judge in dismissing W.P.(C) No.17111 of 2021.
2. The brief facts necessary for the disposal of the writ appeal are as follows:
The appellant/writ petitioner is a registered dealer under the Goods and Services Tax Act (for short, GST Act). The appellant purchases packing materials to pack fruits and vegetables for export and takes the service from the clearing and forwarding agents for exporting the fruits and vegetables. The said act, according to the appellant, is exempted from the Goods and Servies Tax, whereas the container is taxable. Since it was mandatory for the assessee to prefer an application for a refund, the appellant is stated to have preferred the application for refund. When the appellant enquired about the non-acceptance of the online
WA No. 692 of 2025
4 2025:KER:31645
application for refund, it was found that the appellant had filed Form GSTR -1 for the year 2017-2018, which was filled up with a mistake stating that the export was effected “with payment of tax” instead of ‘without payment of tax’. Since the time limit prescribed for amending Form- GSTR 1 is one year, the appellant preferred an application for refund within the time limit, allowing it as “Nil” and expecting that the refund application can be amended subsequently. Since the online portal of the department was not available for the appellant for amending the Form GSTR 1 return for the year 2017-2018 and reopening of the refund application, the appellant approached the writ court with the following reliefs:
“(i) To issue writ of mandamus directing the Respondents to open the online portal of Goods and Service Tax to accept Application for Refund and amendment of Form GSTR 1 returns for the year 2017-18 of the petitioner.”
3. The appellant contended before us that though the issue raised in the writ petition regarding the refund under Section 54 of the GST Act, the writ petition was tagged along with several other writ petitions challenging the constitutional validity of Sections 16(2) and 16(4) of the GST Act. The learned Single Judge who considered the writ petition adopted the reasoning of this Court in judgment dated 04.06.2024 W.P.(C) No.31559 of 2019 and connected cases and dismissed the writ petition.
WA No. 692 of 2025
5 2025:KER:31645
4. Heard Sri. Anil D. Nair, the learned Senior counsel appearing on behalf of the appellant assisted by Sri. Aditya Unnikrishnan, and Sri. P.G. Jayashankar, the learned counsel appearing for the respondents.
5. Sri. Anil D. Nair, the learned Senior counsel appearing on behalf of the appellant, pointed out that the tagging of the writ petition, along with other writ petitions which did not involve the question raised in the present writ petition, was certainly a mistake. The appellants or their counsel could not realise the mistake in time, and the mistake was realised only after obtaining a copy of the judgment. Therefore, the learned Senior counsel submits that the interest of justice requires that the dismissal of the writ petition be set aside and the writ petition be restored to file for fresh consideration.
6. On the other hand, Sri. P.G. Jayashankar, the learned counsel appearing for the respondents, does not dispute the fact that the vires of Sections 16(2) and 16(4) of the GST Act were not the issue involved in this writ petition. He also submitted that there were several other cases in which such mistakes happened and the same was corrected subsequently by way of review.
7. We have considered the rival submissions raised across the Bar and are of the view that the appellant is entitled to succeed. We find from the pleadings in the writ petition and the judgment rendered by the learned Single Judge that the vires of Sections 16(2) and 16(4) of the
WA No. 692 of 2025
6 2025:KER:31645
GST Act was not an issue raised in the writ petition and therefore, the dismissal of the writ petition has caused prejudice to the appellant.
Inasmuch as there is no adjudication on the merits of the claim of the appellant/writ petitioner, we are of the considered view that the judgment under appeal is liable to be set aside and the writ petition be restored to file for fresh consideration in accordance with law.
Accordingly, we allow the appeal by setting aside the judgment dated 28.06.2024 in W.P.(C) No.17111 of 2021 and restore the writ petition to file. The Registry shall list the writ petition as per roster.
Sd/-
DR. A.K. JAYASANKARAN NAMBIAR, JUDGE
Sd/- EASWARAN S.
JUDGE NS