Global Marine vs. The State Tax Officer - Kerala High Court, 07 September 2021

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS TUESDAY, THE 7TH DAY OF SEPTEMBER 2021 / 16TH BHADRA, 1943 WP(C) NO. 27784 OF 2020 PETITIONER: M/S.GLOBAL MARINE, 36/2479/AI/ANANDASSERY HOUSE, K K ROAD, KALOOR, ERNAKULAM-682017, REPRESENTED BY SRI.BAZIL JOSEPH, AUTHRIZED SIGNATORY AND POWER OF ATTORNEY HOLDER. BY ADVS.AUGUSTINE JOSEPH SRI.K.S.ROCKEY SRI.TONY AUGUSTINE SRI.GEORGE RENOY RESPONDENT: THE STATE TAX OFFICER, STATE GOODS AND SERVICE TAX DEPARTMENT, GOVERNMENT OF KERALA, IIIRD CIRCLE, ERNAKULAM-682015. JASMIN M.M. (GP) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 27784 OF 2020 2 BECHU KURIAN THOMAS, J …........................................... W.P.(C) No.27784 of 2020 ….................................. Dated this the 7 th day of September, 2021

JUDGMENT Petitioner challenges the order rejecting its claim for refund of an amount of Rs.6,40,472/- paid towards IGST. The claim for refund was based on account of export transactions.

I have heard Adv.Augustine Joseph, the learned counsel for the petitioner as well as Adv.M.M.Jasmin, the learned Government Pleader.

The learned counsel for the petitioner submits that the rejection of refund is not in accordance with law for various reasons, both factual and legal. It was also argued that the order was issued without granting an opportunity of hearing as contemplated under Rule 92(3) of the Central Goods and Services Tax Rules, 2017 (for short, the Rules).

The learned Government Pleader, Adv.M.M.Jasmin, submits that the petitioner was in fact heard, though,

WP(C) NO. 27784 OF 2020 3 there was an omission on the part of the respondent to mention the hearing conducted.

I have considered the rival contentions. Having regard to the violation of the principles of natural justice, glaring in Ext.P4, the said order is liable to be set aside. Rule 92 of the Rules deal with the procedure for grant of rejection of applications for refund. The proviso to Rule 92(3) explicitly incorporates the principles of audi alteram partum. It reads as follows:- “Provided that no application for refund shall be rejected without giving the applicant an opportunity of being heard.” The provision, therefore, mandates the grant of opportunity to the applicant. No opportunity of hearing has been granted to the petitioner before issuing Ext.P4. 6. This Court can go only on the basis of what is written in the order impugned. Since the order impugned, does not refer to any opportunity of hearing granted to the petitioner, there is nothing on record to assume the contrary. The order impugned is thus bad in law, on WP(C) NO. 27784 OF 2020 4 account of the violation of principles of natural justice. I do not intend to delve into the merits of Ext.P4, even though, the petitioner has a contention that Ext.P4 is bad in law even on merits.

Accordingly, Ext.P4 is set aside and the respondent is directed to reconsider the claim for refund of IGST as put forth through Ext.P1 as well as the clarification given by the petitioner, which is produced as Ext.P3; within a period of three weeks from the date of receipt of a copy of this judgment.

Needless to say before taking a decision, as directed above, the petitioner will be afforded an opportunity of being heard. The writ petition is allowed as above. BECHU KURIAN THOMAS, JUDGE AMV/08/09//2021

WP(C) NO. 27784 OF 2020 5 APPENDIX OF WP(C) 27784/2020 PETITIONER EXHIBITS EXHIBIT P1OF THE LETTER DATED 3.7.2018 FROM THE PETITIONER ANNEXED ALONG WITH THE APPLICTION. EXHIBIT P2OF THE LETTER DATED 23.11.2019 FROM THE RESPONDENT. EXHIBIT P3OF THE LETTER DATED 30.11.2019 FROM THE PETITIONER ANNEXED ALONG WITH THE APPLICATION. EXHIBIT P4OF THE PROCEEDINGS DATED 13.12.2019 OF THE RESPONDENT. RESPONDENTS EXHIBITS : NILP.A.TO JUDGE