Heard together (3 matters)
WP No. 7826 of 2022
WP No. 23144 of 2021
WP No. 5077 of 2022
Read from the judgment's own cause title. This page is filed under one of them.
Cause title — parties, addresses and appearances
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WP No. 7826 of 2022
C/W WP No. 23144 of 2021
WP No. 5077 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO. 7826 OF 2022 (T-RES)
C/W
WRIT PETITION NO. 23144 OF 2021 (T-RES)
WRIT PETITION NO. 5077 OF 2022 (T-RES)
IN WP NO. 7826/2022
BETWEEN:
M/S. NUANCE GROUP (INDIA) PVT. LTD.,
BENGALURU INTERNATIONAL AIRPORT,
ALPHA 3, AIRLINE BUILDING,
1ST FLOOR, DEVANAHALLI,
BENGALURU RURAL,
BENGALURU-560 300,
SHRI. VIVEK JHUNTHUNWALA,
AUTHORIZED SIGNATORIES
UNDER THE COMPANIES ACT 1956.
…PETITIONER
(BY SRI. RAVI RAGHAVAN.,ADVOCATE)
AND:
1.
THE UNION OF INDIA
THROUGH ITS REVENUE SECRETARY,
DEPARTMENT OF REVENUE,
MINISTRY OF FINANCE,
Digitally
signed by
NARASIMHA
MURTHY
VANAMALA
Location:
HIGH
COURT OF
KARNATAKA
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WP No. 7826 of 2022
C/W WP No. 23144 of 2021
WP No. 5077 of 2022
128-A/NORTH BLOCK,0
NEW DELHI-110 001.
2.
THE CENTRAL BOARD OF INDIRECT
TAXES AND CUSTOMS
THROUGH ITS CHAIRMAN,
NORTH BLOCK,
NEW DELHI-110 001.
3.
PRINCIPAL COMMISSIONER OF
COMMERCIAL TAX
BENGALURU NORTH COMMISSIONERATE,
BENGALURU – 560 032.
4.
ASSISTANT COMMISSIONER OF
CENTRAL TAX, ND-8,
NORTH COMMISSIONERATE,
BENGALURU-560 032.
5.
STATE OF KARNATAKA
THROUGH ITS PRINCIPAL SECRETARY,
VIDHANA SOUDHA,
DR. AMBEDKAR VEEDHI,
BENGALURU-560 001.
6.
JOINT COMMISSIONER OF GST, APPEALS –II
TRAFFIC TRANSIT MANAGEMENT CENTRE,
BMTC BUILDING, 4TH FLOOR ABOVE
BMTC BUS STAND DOMLUR,
OLD AIRPORT ROAD, B0ENGALURU – 560 071.
…RESPONDENTS
(BY SRI. AMIT ANAND., ADVOCATE FOR R2 TOR R4;
SRI. K. HEMA KUMAR, AGA FOR R5 & R6;
SRI. MALLAHAR RAO, ADVOCATE FOR R1)
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WP No. 7826 of 2022
C/W WP No. 23144 of 2021
WP No. 5077 of 2022
THIS WRIT PETITION IS FILED UNDER ARTICLE
227 OF THE CONSTITUTION OF INDIA PRAYING TO
HOLD THAT THE SUPPLY OF GOODS FROM THE DUTY-
FREE SHOPS AT THE DEPARTURE AREA OF AN
INTERNATIONAL
AIRPORT
TO
INTERNATIONAL
OUTGOING PASSENGERS IS IN THE NATURE OF
EXPORTS AND THE PETITIO0NER IS ELIGIBLE TO
CLAIM
THE
REFUND
OF
THE
ACCUMULATED
UNUTILIZED INPUT TAX CREDIT OF THE INPUTS AND
INPUT SERVICES; HOLD THAT THE SUPPLY OF
SERVICES FROM THE DUTY-FREE SHOPS AT THE
DEPARTURE AREA OF AN INTERNATIONAL AIRPORT TO
THE FOREIGN COMPANIES IS IN THE NATURE OF
EXPORT OF SERVICES AND THE PETITIONER IS
ELIGIBLE
TO
CLAIM
THE
REFUND
OF
THE
ACCUMULATED UNUTILIZED INPUT TAX CREDIT OF
THE INPUTS AND INPUT SERVICES ISSUE DIRECTION
QUASHING THE REFUND REJECTION ORDER DTD
7.02.2022 ENCLOSED AS ANNEXURE-A1 AND ETC
IN WP NO. 23144/2021
BETWEEN:
M/S NUANCE GROUP (INDIA) PVT LTD
BENGALURU INTERNATIONAL AIRPORT ALPHA 3
AIRLINE BUILDING, 1ST FLOOR,
DEVANAHALLI BENGALURURURAL
BENGALURU-560300
SHRI VIVEK JHUNJHUNWALA
DIRECTOR.
…PETITIONER
(BY SRI. RAVI RAGHAVAN.,ADVOCATE)
AND:
1.
UNION OF INDIA
THROUGH ITS REVENUE SE0CRETARY,
MINISTRY OF FINANCE
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WP No. 7826 of 2022
C/W WP No. 23144 of 2021
WP No. 5077 of 2022
128-A/ NORTH BLOCK
NEW DELHI-110001.
2.
CENTRAL BOARD OF INDIRECT TAXES AND
CUSTOMS
THROUGH ITS CHAIRMAN
NORTH BLOCK
NEW DELHI-110001.
3.
PRINCIPAL COMMISSIONER O0F
COMMERCIAL TAX
BENGALURU NORTH COMMISSIONERATE
BENGALURU – 560 055.
4.
ASSISTANT COMMISSIONER OF CENTRAL TAX
ND-8 NORTH COMMISSIONERATE
BENGALURU-560032.
5.
STATE OF KARNATAKA
THROUGH ITS PRINCIPAL SECRETARY
VIDHANA SOUDHA
DR AMBEDKAR VEEDHI
BENGALURU-560001.
…RESPONDENTS
(BY SRI. SRI MALLAHAR RAO.,ADVOCATE FOR R1;
SRI. AMIT ANAND, ADVOCATE FOR R2 TO R4;
SRI. K. HEMA KUMAR, AGA FOR R5)
THIS WRIT PETITION IS FILED UNDER ARTICLE
226 OF THE CONSTITUTION OF INDIA PRAYING TO
HOLD THAT THE SUPPLY OF GOODS FROM THE DUTY-
FREE SHOPS AT THE DEPARTURE AREA OF AN
INTERNATIONAL
AIRPORT
TO
INTERNATIONAL
OUTGOING PASSENGERS IS IN THE NATURE OF
EXPORTS AND THE PETITIONER IS ELIGIBLE TO CLAIM
THE REFUND OF THE ACCUMU0LATED UNUTILIZED
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WP No. 7826 of 2022
C/W WP No. 23144 of 2021
WP No. 5077 of 2022
INPUT TAX CREDIT OF THE INPUTS AND INPUT
SERVICES; HOLD THAT THE SUPPLY OF SERVICES
FROM THE DUTY-FREE SHOPS AT THE DEPARTURE
AREA OF AN INTERNATIONAL AIRPORT TO THE
FOREIGN COMPANIES IS IN THE NATURE OF EXPORT
OF SERVICES AND THE PETITIONER IS ELIGIBLE TO
CLAIM
THE
REFUND
OF
THE
ACCUMULATED
UNUTILIZED INPUT TAX CREDIT OF THE INPUTS AND
INPUT SERVICES; QUASH THE REFUND REJECTION
ORDERS IN FORM GST RFD-06 ORDER NO. 06/2021-22
(FINAL) ND 8GST REFUNDS & ORDER NO. 20/2021-22
(FINAL) ND-8GST REFUNDS DATED 25.04.2021 AND
20.05.2021 PASSED BY R4 ENCLO0SED AS ANNEXURE-
A1 AND A2 RESPECTIVELY AND ETC
IN WP NO. 5077/2022
BETWEEN:
M/S NUANCE GROUP INDIA PVT LTD
BENGALURU INTERNATIONAL AIRPORT,
ALPHA 3, AIRLINE BUILDING,
1ST FLOOR, DEVANAHALLI,
BENGALURU RURAL ,
BENGALURU 5600300,
(SHRI. VIVEK JHUNJHUNWALA, DIRECTOR)
…PETITIONER
(BY SRI. RAVI RAGHAVAN.,ADVOCATE)
AND:
1.
THE UNION OF INDIA
THROUGH ITS REVENUE SECRETARY,
DEPARTMENT OF REVENUE,
MINISTRY OF FINANCE,
128-A/NORTH BLOCK,
NEW DELHI 110001.
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WP No. 7826 of 2022
C/W WP No. 23144 of 2021
WP No. 5077 of 2022
2.
THE CENTRAL BOARD OF
INDIRECT TAXES AND CUSTOMS
THROUGH ITS CHAIRMAN,
NORTH BLOCK,
NEW DELHI 110001.
3.
PRINCIPAL COMMISSIONER OF CENTRAL TAX
BENGALURU NORTH COMMISSIONERATE,
BENGALURU 560032.
4.
DEPUTY COMMISSIONER OF
CETNRAL TAX ND 8,
NORTH COMMISSIONERATE,
BENGALURU 560032.
5.
STATE OF KARNATAKA
THROUGH ITS PRINCIPAL SECRETARY,
VIDHANA SOUDHA,
DR. AMBEDKAR VEEDHI,
BENGALURU 560001.
…RESPONDENTS
(BY SRI.MALLAHAR RAO., ADVOCATE FOR R1;
SRI. JEEAN J. NEERALGI, ADVOCATE FOR R2 TO R4;)
SRI. K. HEMA KUMAR, AGA FOR R5)
THIS WRIT PETITION IS FILED UNDER ARTICLE
227 OF THE CONSTITUTION OF INDIA PRAYING TO
HOLD THAT THE SUPPLY OF GOODS FROM THE DUTY-
FREE SHOPS AT THE DEPARTURE AREA OF AN
INTERNATIONAL
AIRPORT
0TO
INTERNATIONAL
OUTGOING PASSENGERS IS IN THE NATURE OF
EXPORTS AND THE PETITIONER IS ELIGIBLE TO CLAIM
THE REFUND OF THE ACCUMULATED UNUTILIZED
INPUT TAX CREDIT OF THE INPUTS AND INPUT
SERVICES; HOLD THAT THE SUPPLY OF SERVICES
FROM THE DUTY-FREE SHOPS AT THE DEPARTURE
AREA OF AN INTERNATIONAL AIRPORT TO THE
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WP No. 7826 of 2022
C/W WP No. 23144 of 2021
WP No. 5077 of 2022
FOREIGN COMPANIES IS IN THE NATURE OF EXPORT
OF SERVICES AND THE PETITIONER IS ELIGIBLE TO
CLAIM
THE
REFUND
OF
THE
ACCUMULATED
UNUTILIZED INPUT TAX CREDIT OF THE INPUT AND
INPUT SERVICES.
THESE
PETITIONS,
COMING
ON
FOR
PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
These petitions are filed calling in question the orders in appeal under the provisions of Section 112 of the Central Goods and Services Tax Act, 2017 (for short, the ‘CGST Act’) as also the rejection of refund applications filed under Section 54 of the CGST Act read with Rule 89 of the CGST Rules. The details of such orders called in question in these petitions are as follows:
Writ Petition No. Order No. Date 7826/2022 Order in Appeal No. 221/2021-22/JC-AII/GST 07.02.2022 23144/2021 Refund Rejection Order Nos.06/2021-22(Final)ND- 8-GST Refunds and 25.04.2021 and
- 8 - 20/2021-22(Final)ND- 8GST Refunds 20.05.2021 5077/2022 Refund Rejection Order No.Nil/2021-22(Final)ND-8 26.10.2021
Sri Ravi Raghavan, the learned counsel for the petitioner submits that the petitioner’s claim for refund of Input Tax Credit [ITC] is rejected for the reason that the petitioner has sought such refund under the provisions of Rule 95A and the Circular No.106/25/2019/GST dated 29.06.2019, and the petitioner’s claim for reversal of ITC, an additional question that is canvassed in W.P.No.23144/2021, is also rejected overlooking the decision of the Hon’ble 1 2019-VIL-495-BOM 29.06.2019 is also withdrawn based on the Council’s recommendation and in this regard, he draws this Court’s attention to the Paragraph-14 of the Recommendations:
“14. Supplies from duty free Shops (DFS) at international terminal to outgoing international passengers to be treated as exports by DFS and consequential refund benefit to be available to them on such supplies. Rule 95A of the CGST Rules, Circular No. 106/25/2019-GST dated 29.06.2019 and related notification to be rescinded accordingly.”
Sri Ravi Raghavan submits that consequentially the impugned orders will have to be quashed and restored for reconsideration. Sri Amit Deshpande, the learned Counsel for the respondent, does not dispute the premise in which the refund is sought for and he emphasizes that all questions otherwise may
- 10 - be left open for consideration including the consideration of the petitioner’s prayer for reversal of ITC based on the decision in Sandeep Patil, supra.
For the foregoing, the writ petitions are allowed quashing the aforesaid impugned orders and restoring the proceedings for reconsideration leaving open all contentions by both the parties. JUDGE
NV
