M/S Shivam Jewels vs. Union Of INDIA

SCA/12541/2021HC GujaratGSTCNR GJHC24044166202106 October 2021Bench: HONOURABLE THE CHIEF JUSTICE MS. JUSTICE SONIA GOKANI,HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN3 pages
AI SummaryRemanded

Held

The petitioner sought withdrawal of the petition. The Court noted that the Apex Court in the case of VKC Footsteps India Pvt. Ltd. vs. Union of India had upheld the decision of the Madras High Court in Tvl. Transtonneslstroy Afcons Joint Venture vs. Union of India and Others, and had not sustained the order of the Gujarat High Court in VKC Footsteps. Consequently, the learned advocate for the petitioner sought withdrawal. The Court granted the withdrawal as prayed for. The petition was disposed of as withdrawn. No specific findings were made on the merits of the issues raised.

Facts

The petitioner, M/s Shivam Jewels, filed a Special Civil Application before the Gujarat High Court challenging Rule 89(5) of the CGST/GGST Rules and Notifications No. 26/2018-C.T. and 26/2018-State Tax, dated June 13, 2018. The petitioner sought to declare these provisions ultra vires the CGST/GGST Act and the Constitution of India, as they allegedly denied the grant of refund of unutilized tax credit in respect of tax paid on input services. The petitioner also prayed for directions to allow consideration of accumulated unutilized input tax credit on input services for refund. The procedural history indicates that the petitioner sought withdrawal of the petition.

Key Issues

1. Whether Rule 89(5) of the CGST/GGST Rules, to the extent it denies the grant of refund of unutilized tax credit in respect of tax paid on input services, is ultra vires Section 54(3) of the CGST/GGST Act and/or the Constitution of India? 2. Whether Notification No. 26/2018-C.T. and Notification No. 26/2018-State Tax, dated June 13, 2018, which retrospectively amend Rule 89(5) of the CGST and GGST Rules, are ultra vires Section 54(3) of the CGST/GGST Act and/or the Constitution of India? 3. Whether Section 54(3) of the CGST Act/GGST Act read with the amended Rule 89(5) of the CGST and GGST Rules, to the extent they deny the grant of refund of unutilized tax credit on input services, are in contravention of the Constitution of India? Petitioner's Arguments: The petitioner argued that Rule 89(5) and the subsequent notifications were ultra vires the parent Act and the Constitution, as they unfairly denied refunds of input tax credit on input services. Revenue's Arguments: The judgment records no specific arguments from the respondents.

Sections Cited

Section 54(3), Rule 89(5)

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances
C/SCA/12541/2021 ORDER DATED: 06/10/2021 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 12541 of 2021 ========================================================== M/S SHIVAM JEWELS Versus UNION OF INDIA ========================================================== Appearance: MR.AVINASH PODDAR(9761) for the Petitioner(s) No. 1 for the Respondent(s) No. 1,2,4 MS MAITHILI MEHTA, ADDL. GOVERNMENT PLEADER/PP(99) for the Respondent(s) No. 3 ========================================================== CORAM: HONOURABLE MS. JUSTICE SONIA GOKANI and HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN Date : 06/10/2021

ORAL ORDER (PER : HONOURABLE MS. JUSTICE SONIA GOKANI)

1.

The petitioner is before this Court seeking following reliefs: - “(a) To issue writ of or in the nature of a mandamus or any other appropriate writ, order or direction holding and declaring that the Rule 89(5) the CGST Rules / GGST Rules, to the extent that the said provision denies grant of refund of unutilized tax credit in respect of tax paid on input services is ultra vires and de-hors to Section 54(3) of the C

The judgment continues below.

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