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TMI Blog2019 (11) TMI 1246X X X X Extracts X X X X X X X X Extracts X X X X ..... obacco and manufactured tobacco substitutes" including the Officer who passed the impugned orders dated 4.10.2019 (Annexure 2) and to prevent grant of any further refund claims. He is also seeking direction to the respondent No.3 to file a statutory appeal against the impugned orders dated 4.10.2019. 4) Section - 54 of the Central Goods and Services Tax Act, 2017 [hereinafter referred to as 'CGST Act'] which came into force w.e.f. 1.7.2017 provides that refund of excess tax, interest or any other amount paid can be claimed before expiry of two years from the relevant date. In CGST Act, the purchaser gets credit of the tax paid by it on its inputs. On removal of the goods as output, it can utilize the credit taken. If the tax on the output is at a lower rate, the credit gets accumulated. This accumulated input tax credit can be claimed as refund, provided the goods are not notified under Section 54 (3) (ii) of CGST Act read with Section 9 (2) Goods and Services Tax (Compensation to States) Act, 2017. 5) On 20.9.2019, GST Council in the 37th meeting at Goa inter alia recommended restriction on refund of compensation cess on "Tobacco and manufactured tobacco substitutes" (in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid that the public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest, an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armoury of law for delivering social justice to the citizens. 10)Learned Counsel for respondents, who are appearing in advance notice, submits that the instant P.I.L. petition is clear misuse of abuse of process of law and the same shall be liable to be dismissed with exemplary costs. 11) In the case of CIT v. Vatika Township Private Ltd. [(2015) 1 SCC 1], the Hon'ble Supreme Court has clarified the position regarding general principles against retrospectivity as principle of 'fairness' while holding that legislations which modified accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as prospective. 12)The Gujarat High Court in its recent judgment dated 17.7.2019 in R/Special Civil Application No.20626 of 2018, Shabnam Petrofils Pvt. Ltd. v. Union of India, which is also conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive application. 15)The Constitution Bench of the Apex Court in Vatika Township Pvt. Ltd. (supra) has made it absolutely clear that there is a presumption against retrospectivity as a principle of fairness. Since the notification dated 30.9.2019 modified accrued rights and attaches a new disability, the same is necessarily prospective. Thus, if any excess tax is paid after issuance of this Notification and credit accumulated due to inverted tax structure, refund of such tax would not be available. However, when the excess tax is paid and credit taken before issuance of the notification dated 30.9.2019, the Notification cannot be applied retrospectively to deny the refund of such accumulated excess tax paid to the Notification. 16) The judgment of the Gujarat High Court in Shabnam Petrofils Pvt. Ltd. (supra) also negates the contentions of the petitioner. While holding that when credit is taken it is indefeasible with its benefit available to the manufacturer without any limitation in time and that a right is accrued to the assessee on the date when they paid the tax on the raw materials or the inputs and that right would continue until the facility thereto gets worked out or u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is held that the petitioners and members of the petitioners are entitled for the credit and it be granted to them." "(x) The members of the writ applicants have a vested right to unutilized ITC, accumulated on account of rate of tax on inputs being higher than the rate of tax on the output supplies. (xi) It is a well settled principle that the delegated legislation has to be in conformity with the provisions of the parent statute. By prescribing for lapsing of ITC, the Notification No.05/2017-C.T. (Rate) dated 28.06.2017, as amended by Notification No. 20/2018-C.T. (Rate) dated 26.07.2018, has exceeded the power delegated under Section 54(3)(ii) of the CGST Act. (xii) In view of the above, poviso (ii) of the opening paragraph of the Notification No.05/2017-C.T. (Rate) dated 28.06.2017, inserted vide Notification No.20/2018-C.T. (Rate) dated 26.07.2018, is ex-facie invalid and liable to be strike down as being without any authority of law." 17) In the case of Siddharth Enterprises v. Nodal Officer [2019 (29) G.S.T.L. 664 (Guj.)] a Division Bench of Gujarat High Court has held that the denial of carry forward of tax paid on stock on the appointed day may lead to cascading effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after 30.9.2019. Both the impugned orders dated 04.10.2019 are not in respect of any such accumulated credit of excess tax paid after 30.9.2019 on such notified input supplies. Therefore, there is no infirmity in these orders granting refund, warranting any interference. 19)Looking to the nature of relief claimed by the writ petitioner, we are of view that an individual dispute should not be allowed to be converted into a PIL. It cannot be ruled that this writ petition may be sponsored by some interested persons who are having any grudge against the private respondents. Accordingly, the Public Interest Litigation petition is dismissed with Rs. 5,000/- cost and the cost shall be deposited in the account of Secretary, High Court Legal Services Sub-Committee, Lucknow within a period of fifteen days from today, else the cost shall be recovered from the petitioner as arrears of land revenue. NOTE: It is to be noted that the instant judgment has been dictated and signed by Hon'ble Mr. Justice Pankaj Kumar Jaiswal. In this matter a separate judgment of the same date has been dictated and signed by Hon'ble Mr. Justice Alok Mathur. ORDER PANKAJ KUMAR JAISWAL AND ALOK M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order was dictated in the open court and the writ petition was dismissed only the ground of maintainability. The occasion to write a separate opinion has occurred only after receipt of the copy of the judgement/order of my esteemed brother wherein the merits of the assessment as well as the validity of the notification no. 3/2019 dated 03/09/19 has been dealt elaborately and in paragraph no.8-18 after a detailed discussion and even the orders dated 04/10/2019 as well as the Notification dated 03.09.2019, have been upheld. 6. We are of the unanimous view that the present writ petition, styled as a public interest litigation, would not be maintainable in the present facts and circumstances of the case, where firstly, no public interest is involved wherein the assessment orders of certain individuals have been challenged, and secondly the bona fides of the petitioner himself is questionable. In such a scenario, the Hon'ble Apex court has held that a public interest litigation should not be entertained. In light of the above, the present public interest litigation was dismissed on the ground of maintainability with the cost of Rs. 5000/-. 7. The dismissal of the writ petition on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the courts for exercise of such extraordinary jurisdiction. 11. The manner of exercise of jurisdiction in entertaining Public Interest Litigations has been extensively dealt with by the Hon'ble Apex Court in the case of State of Uttaranchal v. Balwant Singh Chaufal, (2010) 3 SCC 402 the same are as follows:- Abuse of Public Interest Litigation 143. Unfortunately, of late, it has been noticed that such an important jurisdiction which has been carefully carved out, created and nurtured with great care and caution by the courts, is being blatantly abused by filing some petitions with oblique motives. We think time has come when genuine and bona fide public interest litigation must be encouraged whereas frivolous public interest litigation should be discouraged. In our considered opinion, we have to protect and preserve this important jurisdiction in the larger interest of the people of this country but we must take effective steps to prevent and cure its abuse on the basis of monetary and non-monetary directions by the courts. 144. In BALCO Employees' Union v. Union of India [(2002) 2 SCC 333 : AIR 2002 SC 350] this Court recognised that there have been, in recent times, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and services. Political rivalries have to be resolved in the great hall of democracy when the electorate votes its representatives in and out of office. Courts resolve disputes about legal rights and entitlements. Courts protect the rule of law. There is a danger that the judicial process will be reduced to a charade, if disputes beyond the ken of legal parameters occupy the judicial space. 13. Applying the ratio as well as the tests laid down by the Hon'ble Apex court for entertaining Public Interest Litigation, I am of the considered opinion that the instant petition is not in public interest litigation and has been filed at the behest of an interested party. The issue raised in the petition is also not a public interest, in as much as such notifications in the field of taxation can very well be challenged by the persons aggrieved by the same, and further, there are various safeguards provided in the GST Act to take care of such situations and even to rectify any order passed by the assessing authority, by the superior authority. 14. Looking into the nature of relief claim by the writ petitioner, I am of the view that an individual dispute should not be allowed to be conver ..... X X X X Extracts X X X X X X X X Extracts X X X X
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