Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH WEDNESDAY, THE 1ST DAY OF NOVEMBER 2023 / 10TH KARTHIKA, 1945 WP(C) NO. 31990 OF 2023 PETITIONER:
COCO LATEX EXPORTS PVT. LTD., CHUNGOM, ALAPPUZHA – 688011, REPRESENTED BY ITS MANAGING DIRECTOR.
BY ADV.
SRI. A. KRISHNAN RESPONDENTS:
1 DEPUTY DIRECTOR, CENTRAL EXCISE BHAVAN, KATHRIKADAVU, KALOOR, KOCHI, PIN – 682017.
2 DEPUTY COMMISSIONER (CUSTOMS), CUSTOMS GST & CENTRAL EXCISE, WLLINGTON ISLAND, KOCHI, PIN – 682009.
3 ADDITIONAL DIRECTOR, KOCHI ZONAL UNIT, DIRECTORATE GENERAL OF GST INTELLIGENCE, OFFICE OF THE PRINCIPAL ADDITIONAL DIRECTOR GENERAL, KOCHI ZONAL UNIT, CENTRAL EXCISE BHAVAN, KALOOR, KOCHI, PIN – 682017.
4 THE UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF FINANCE, FINANCE DEPARTMENT, NEW DELHI, PIN – 110001.
BY ADV.
SRI. P. G. JAYASHANKAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 31990 OF 2023 2 DINESH KUMAR SINGH, J.
-------------------------- W.P.(C) No.31990 of 2023 ------------------------- Dated this the 1st day of November, 2023 JUDGMENT 1.
The present writ petition has been filed for the following reliefs;
1.
Through issuing appropriate Order or Direction declare that the Ext.P4; Ext. P5 and Ext. P5(a) & Ext. P6 Circulars in so far as it takes away the benefit of exemption under Ext. P2 is contrary to one of the very objects for introduction and implementation of CGST Act, 2017 with retrospective effect from 23.10.2017, is unsustainable and hence unconstitutional and bad at law.
2.
Through issuing appropriate Order or Direction declare that the Ext. P4; Ext. P5 and Ext. P5(a) & Ext. P6 Circulars in so far as it is brought into force with retrospective effect from 23.10.2017 is ultra vires the purview, scope and ambit of Section 164 of the CGST Act,
is
unsustainable
and
hence unconstitutional and bad at law.
WP(C) NO. 31990 OF 2023 3 3.
Through issuing a writ of mandamus or any other writ, order or direction, command the respondents to grant refund of the ITC or IGST availed and claimed by the petitioner in so far as the said claim is within the scope and bounds of Ext. P2 but unrestricted by the retrospective application of the amendments brought in as per Ext. P4; Ext. P5 and Ext.
P5(a) & Ext. P6 Circulars.
4.
Through issuing a writ of certiorari or any other writ, order or direction, call for records pertaining to Ext. P9 and quash Ext.
P9.
5.
Such other appropriate writ, order or direction as this Hon’ble Court deems fit and proper to grant as to the nature of the case.
2.
After some arguments, the Learned Counsel for the petitioner submits that the petitioner may be permitted to file reply to the impugned show cause notice within two weeks.
3.
The present writ petition is, therefore, disposed of with liberty to the petitioner to file reply to the show cause notice within two weeks. The petitioner shall raise all the grounds in respect of the maintainability of proceedings which is to be
WP(C) NO. 31990 OF 2023 4 initiated by the show cause notice before the concerned authority and the concerned authority shall consider the reply to the show cause notice filed by the petitioner and pass appropriate orders in accordance with the law after affording an opportunity of hearing to the petitioner.
With the above directions, the present writ petition stands finally disposed of.
Sd/-
DINESH KUMAR SINGH JUDGE Svn
WP(C) NO. 31990 OF 2023 5 APPENDIX OF WP(C) 31990/2023 PETITIONER’S EXHIBITS EXHIBIT P1 TRUE COPY OF NOTIFICATION NO. 52/2003- CUSTOMS DT 31.3.2003 EXHIBIT P1(a) TRUE COPY OF NOTIFICATION NO79/2017-CUSTOMS DT.13.10.2017 EXHIBIT P1(b) TRUE COPY OF NOTIFICATION NO78/2017-CUSTOMS DT.13.10.2017 EXHIBIT P2 TRUE COPY OF NOTIFICATION NO33/2018-CUSTOMS DT.23,3.2018 Exhibit P2(a) TRUE COPY OF NOTIFICATION NO 65/2018- CUSTOMS DT.24.9.2018 EXHIBIT P2(b) TRUE COPY OF NOTIFICATION NO 9/2019-CUSTOMS DT.25.3.2019 EXHIBIT P2(c) TRUE COPY OF NOTIFICATION NO 16/2020- CUSTOMS DT.24.3.2020 EXHIBIT P2(d) TRUE COPY OF NOTIFICATION NO 19/2021- CUSTOMS DT.30,3,2021 EXHIBIT P3 TRUE COPY OF NOTIFICATION NO 40/2017- CENTRAL TAX (RATE) DT.23.10.2017 EXHIBIT P3(a) TRUE COPY OF NOTIFICATION NO 41/2017- INTEGRATED TAX (RATE) DT.23.10.2017 EXHIBIT P3(b) TRUE COPY OF NOTIFICATION NO 48/2017 CENTRAL TAX DT.18.10.2017 EXHIBIT P4 TRUE COPY OF NOTIFICATION NO 3/2018 CENTRAL TAX DT.23.1.2018 EXHIBIT P5 TRUE COPY OF NOTIFICATION NO 53/2018 CENTRAL TAX DT.9.10.2018
WP(C) NO. 31990 OF 2023 6 EXHIBIT P5(a) TRUE COPY OF NOTIFICATION NO 54/2018 CENTRAL TAX DT.9.10.2018 EXHIBIT P6 TRUE COPY OF NOTIFICATION NO 16/2020- CENTRAL TAX DT.23.3.2020 EXHIBIT P7 TRUE COPY OF THE NOTICE ISSUED BY 1ST RESPONDENT
DT16.11.2021
NO.DGGI/INV/ GST/2154/2021-GRGO/OADG-DGGI-ZU-KOCHI EXHIBIT P7(a) TRUE COPY OF THE REPLY TO 1ST RESPONDENT DT 30.12.2021 NO.G/407/CLE/AM EXHIBIT P8 TRUE COPY OF THE LETTER TO 2ND RESPONDENT SUBMITTED BY THE PETITIONER DT 30.12.2021 NO.G/408/CLE/AM EXHIBIT P8(a) TRUE COPY OF THE LETTER TO 2ND RESPONDENT SUBMITTED BY THE PETITIONER DT .11.5.2022 NO.G/64/CLE/D EXHIBIT P8(b) TRUE COPY OF THE LETTER TO 2ND RESPONDENT SUBMITTED BY THE PETITIONER DT. 23.5.2022 NO.G/74/CLE/AM EXHIBIT P9 TRUE COPY OF THE NOTICE ISSUED BY 3RD RESPONDENT DT 1.8.2023 NO.DGGI/INV/GST/ 2154/2021-GRG-O/OADG-DGGI-ZU-KOCHI EXHIBIT P10 TRUE COPY OF THE ORDER IN W.P.(C) NO.24230/2022 DT.23.6.2023 OF THIS HON'BLE COURT