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2024 (4) TMI 516 - HC - GSTRefund of service tax on Ocean Freight - Precedents - Validity of order of CESTAT for non-following the decision of Non-Jurisdictional High Court, in regard to constitutionality of a provision or not - impugned order passed at the stage when the issue was pending before the Hon'ble Supreme Court - SC has subsequently passed an order setting aside the said decision of the Gujarat High Court - HELD THAT - The impugned order has been passed at the stage when the issue was pending before the Hon'ble Supreme Court against the decision of the Gujarat High Court in MOHIT MINERALS PVT LTD VERSUS UNION OF INDIA 1 OTHER 2020 (1) TMI 974 - GUJARAT HIGH COURT . The Hon'ble Supreme Court has subsequently passed an order setting aside the said decision of the Gujarat High Court, on UNION OF INDIA ANR. VERSUS M/S MOHIT MINERALS PVT. LTD. THROUGH DIRECTOR 2022 (5) TMI 968 - SUPREME COURT . The Hon'ble Supreme Court has held The IGST Act and the CGST Act define reverse charge and prescribe the entity that is to be taxed for these purposes. The specification of the recipient in this case the importer by Notification 10/2017 is only clarificatory. The Government by notification did not specify a taxable person different from the recipient prescribed in section 5 (3) of the IGST Act for the purposes of reverse charge. The impugned order was decided without relying on the decision in the case of Mohit Minerals as the jurisdictional High Court of Madras has not struck down the provisions of levy and collection of service tax on Ocean freight as ultra vires and in the Writ Petition filed by the appellant the Hon'ble High Court of Madras has not granted any stay. Moreover, the Hon'ble Apex Court has admitted an appeal filed by the department against the judgment of the Hon'ble High Court of Gujarat in the case of M/s. Mohit Minerals P Ltd. The impugned Order-in-Appeal passed by the first respondent is set aside. The respondents are directed to process the claim of the petitioner for refund together with applicable interest under the provisions of the IGST Act, 2017, within a period of 3 months from the date of receipt of a copy of this order. The writ petition is allowed.
Issues involved:
The petitioner challenged an Order-in-Appeal seeking refund u/s IGST Act. The impugned order relied on a decision of CEGAT and the High Court of Gujarat, which was not followed due to lack of stay by Madras High Court. Subsequently, the Supreme Court set aside the decision of the Gujarat High Court. Details of the Judgment: *Issue 1: Challenge to Order-in-Appeal* The petitioner challenged Order-in-Appeal seeking refund u/s IGST Act. The impugned order relied on CEGAT's decision and the High Court of Gujarat, not followed due to lack of stay by Madras High Court. *Issue 2: Supreme Court's Decision* The Supreme Court set aside the decision of the Gujarat High Court, clarifying that the specification of the recipient for reverse charge was only clarificatory, not specifying a different taxable person. *Conclusion:* In view of the Supreme Court's decision, the impugned Order-in-Appeal was set aside, directing the respondents to process the petitioner's refund claim with applicable interest under the IGST Act within 3 months. The Writ Petition was allowed with no costs.
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