9911796707
TMI Blog2023 (9) TMI 275X X X X Extracts X X X X X X X X Extracts X X X X ..... ht appears to be the person who has been the importer of the impugned goods in terms of entry made at Sr. No. 10 appended to the notification no. 10/2017. Essentially therefore the show-cause notice draws power from the Notifications No. 8/2017 and 10/2017. Perusal of the judgement of the Apex Court in the case of Mohit Minerals Pvt. Ltd. [ 2022 (5) TMI 968 - SUPREME COURT] would indicate that the Division Bench of this court held that the impugned notifications are unconstitutional for exceeding the powers conferred by the IGST Act and the CGST Act - The Hon ble Apex Court in agreement with the decision of this Court held that to the extent that a tax on the supply of a service which has already been included by the legislation as a t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on CIF value wherein both the service provider and the service recipient in respect of transportation/ shipping of goods were located outside the territory of India. The petitioner filed a reply to the final order. 3.1 A show-cause notice was issued to the petitioner on 16.02.2023 indicating that the petitioner who was engaged in the manufacture and outward supply of goods and services was found to have imported goods for the financial years stated in the said notice. According to the notice, there was a stipulation in the notification no. 10/2017 dated 28.06.2017 which made the petitioner liable to pay GST i.e. IGST on Ocean Freight . As per the show-cause notice, since it appears that in case of transportation of goods by a vessel fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 28.06.2017 and notification no. 10/2017 dated 28.06.2017 as ultra vires the IGST Act, 2017 has been reversed by the Apex Court. He would therefore submit that the petition deserves to be dismissed. 6. Having considered the submissions made by learned counsels for the respective parties, perusal of the show- cause notice would indicate that reliance has been placed on the Notifications No. 8/2017 and 10/2017 dated 28.06.2017 indicating that a person liable to pay IGST on ocean freight appears to be the person who has been the importer of the impugned goods in terms of entry made at Sr. No. 10 appended to the notification no. 10/2017. Essentially therefore the show-cause notice draws power from the Notifications No. 8/2017 and 10/2017. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the GST regime to foster cooperative federalism and harmony between the constituent units; (b) Neither does Article 279A begin with a non-obstante clause nor does Article 246A state that it is subject to the provisions of Article 279A. The Parliament and the State legislatures possess simultaneous power to legislate on GST. Article 246A does not envisage a repugnancy provision to resolve the inconsistencies between the Central and the State laws on GST. The recommendations of the GST Council are the product of a collaborative dialogue involving the Union and States. They are recommendatory in nature. To regard them as binding edicts would disrupt fiscal federalism, where both the Union and the States are conferred equal power to leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to specify a class of registered persons as the recipients, thereby conferring the power of creating a deeming fiction on the delegated legislation; (v) The impugned levy imposed on the service aspect of the transaction is in violation of the principle of composite supply enshrined under Section 2(30) read with Section 8 of the CGST Act. Since the Indian importer is liable to pay IGST on the composite supply , comprising of supply of goods and supply of services of transportation, insurance, etc. in a CIF contract, a separate levy on the Indian importer for the supply of services by the shipping line would be in violation of Section 8 of the CGST Act. 7. In light of the aforesaid, it is held that the show-cause notice imp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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