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TMI Blog2024 (2) TMI 1285X X X X Extracts X X X X X X X X Extracts X X X X ..... t of supply of goods. Even though the petitioner was entitled to ITC he would still be liable to pay tax on the Services availed. The petitioner had not been paying taxes to respondents No.3 and 4 due to interim orders passed by the Court but respondents No.3 and 4 were depositing the same with the department/ authorities being the service provider. Therefore, the Hon ble Third Judge did not modify the order dated January 04, 2018, but clarified that the petitioner would be liable to pay interest on the withheld amounts of GST on Services in terms of interim order dated April 30, 2018. In the light of observations made and the interim orders dated January 04, 2018 and April 30, 2018 passed by Hon ble Third Judge and the terms of the concession agreement, it is opined that the petitioner should first pay the respondents No.3 and 4 and then claim ITC and/or subsequent refund, if any, from respondents No.1, 5 and 6. Therefore, the petitioner is bound to pay the GST on the Services provided by the respondents No.3 not only in accordance with the case laws discussed hereinabove but also due to the binding concession agreement between the petitioner and the respondents No.3 and 4 - it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prayed for a writ of Mandamus declaring that the aforesaid taxes could not be claimed by the authorities/respondents either on account of 'Goods' or on account of 'Services'. The petitioner was not required to pay anything over and above the sum stipulated in the Concession Agreement. Respondents No.3 and 4 contended that the amount that has been paid by the said respondents to respondent No.1 has to be reimbursed to respondent No.3 by the petitioner and thereafter refund may be claimed from Union of India/respondent No.1 by the petitioner in accordance with law. 3. It is the case of Union of India/respondent No.1 that refund, if any, should be claimed by the petitioner company from Respondent No.1, since Respondents No.3 and 4 deposited the CGST and SGST on behalf of the petitioner, the same could not be refunded directly to respondents No.3 and 4. 4. Mr. Mittal, learned Senior Advocate appearing for respondents No.3 and 4 argued that a sum of Rs. 3,83,38,993/- has been paid by the said respondents to the respondent No.1 on account of GST for the bills raised between November 2017 and September 30, 2021. The said facts will appear from a perusal of statements made in CM-4399- CW ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d during the vacation and only a few days before the term reopened. They therefore oppose any application for adjournment. We agree that the interim order does not protect the revenue totally. We however intend granting the petitioner's an opportunity of atleast filing an affidavit in reply. The apprehension that the petitioner would wrongly contend that the interim order protects them against any coercive action for any amount due and payable is not well founded. The interim order only concerns the GST portion. Even the learned counsel appearing on behalf of the petitioner rightly does not contend otherwise. It is clear to us that the protection is only regarding the petitioner's liability towards GST. The respondents or any of them are entitled to take any other action including for termination of the licence/agreement for any other claims that they may have. The grievance that in the event of this order being vacated or in the event of petitioner losing the matter finally, the respondents would be adversely affected inter-alia on account of loss of interest can always be taken care of by the Court in the further or final order. In fact in the event of the order being vac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of GST with respondents No.3 and 4 which should be retained in a separate account and the same would be appropriated in accordance with final decision in the writ petition. In case the petitioner was liable to pay the amount, the same would be deposited with the department whereas in case the transaction was found to be not taxable, the same was to be refunded to the petitioner. 10. A divergent view was taken by Amit Rawal, J. by an order of the even date. He referred to the Hon'ble Supreme Court's decision in SLP No.8614 of 2018 to come to the conclusion that the SLP containing similar issues were dismissed on the ground that the same were filed against the interim orders. He held as under : "xxx During all this period, the matter remained pending and only an application under Article 226 (3) of the Constitution of India has been preferred by respondents No.1 and 2, but not by respondent No.3. There is no change in the circumstances from the date of passing of the interim order and during the pendency of the writ petition when taken up from time to time. I also cannot remain unmindful of the fact that vide C.M No.8816-CWP of 2018, prayer was made for disposal of the writ p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner on account of orders of this Court, however, have deposited with GST authorities. Deposit of tax without being collected from Petitioner is causing irreparable loss in terms of blocking of funds. As per law cited by both sides, the Petitioner is not liable to pay tax on supply of goods, however, is liable to pay tax on services availed from Respondent/Airport Authority. The Petitioner is entitled to Input Tax Credit of GST paid on services availed and accumulated credit can be used for the payment of tax or refund may be applied, as the case may be. The Petitioner does not want to pay tax on the ground that they are entitled to refund on account of export of goods. As per judgments relied upon by both sides, the Petitioner though would be entitled to ITC still is liable to pay tax on services availed, however, the Petitioner on account of interim orders of this Court is not paying tax to Respondents No.3 and 4, who are depositing with officials Respondents being service provider. 10. Both sides concede the main controversy more or less stands settled by different High Courts, thus this Court is of the opinion that there seems no necessity to modify order dated 4.1.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stom frontiers. Reliance was placed on Hotel Ashoka v. Assistant Commissioner of Commercial Taxes reported as 2012 (278) ELT 433 (SC) by the Apex Court in its order dated 10.04.2023 and in the case of A-1 Cuisines Private Limited v. Union of India reported as 2019 (22) GSTL 326 (Bombay) and Central Government order in the case of Aarish Altaf Tinwala v. Commissioner of Customs (Airport), Mumbai in Writ Petition (s) (Criminal) No.97 of 2019. There is no dispute with regard to the said proposition. 16. Learned counsel for the petitioner also placed substantial reliance on M/s Flemingo Duty Free Shop Private Limited v. Union of India and another in WP No.4055 of 2018 and WP (MD) No.2129 of 2018, passed by the learned Single Judge of the Madras High Court to contend that the refund of the GST should be paid directly by respondents No.1 and 5 to respondents No. 3 and 4. 17. In WP No.4055 of 2018 also, it has been held that the petitioner shall pay GST on input services including concession fee to the respondent No.4 and claim ITC on the entire tax amount and thereafter claim refund of the same by following the procedure as prescribed inter alia under Sections 54 (3) of the CGST Act 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essibility of GST at Calicut International Airport but since this Court had granted the stay, which is operational during the pendency of the present writ petition, no GST is payable by respondent No.4 Airport Authority and no useful purpose would be served in directing Respondents No.1 and 3 to recover any GST on concession fee till 30.06.2020, which Respondent No.4 will seek to recover from the petitioner since as per judgment dated 07.10.2019, the supply of goods by DFSs to outgoing passengers is export of goods under IGST and zero rated supply, it would entitle the petitioner (s) to claim 100% of ITC and refund thereof effective from 01.07.2020 onwards. As per the reasoning assigned in para 37 of the judgment referred to above in Sandeep Patil the petitioner shall pay the GST on input services including Concession Fee to Respondent No.4 and claim ITC of the entire tax amount and thereafter claim refund of the same by following the procedure prescribed under Section 54 (3)of the Central Goods and Services Tax Act, 2017 and Kerala Goods and Services Tax Act, 2017 read with Rule 89 of Central Goods and Services Tax Rules, 2017 and Kerala Goods and Services Tax Rules, 2017." 23. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld first pay the respondents No.3 and 4 and then claim ITC and/or subsequent refund, if any, from respondents No.1, 5 and 6. 25. Therefore, the petitioner is bound to pay the GST on the Services provided by the respondents No.3 not only in accordance with the case laws discussed hereinabove but also due to the binding concession agreement between the petitioner and the respondents No.3 and 4. 26. In view of the discussions made hereinabove, it is directed that the petitioner will reimburse the sum of Rs. 3,83,38,993/- to the respondents No.3 and 4 within a period of four weeks from date of this order, along with interest as the order dated April 30, 2018 also makes it clear that the petitioner is liable to pay GST along with interest if it does not succeed in the writ petition. It is directed that interest shall be paid @ 8% per annum from the date of deposits made by Respondents No.3 and 4 till such time the entire reimbursement is done to them. The petitioner shall make necessary applications in accordance with law for claiming ITC and/or refund of the amount reimbursed to respondents No.3 and 4 and other amounts refundable and the same shall be duly considered by respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X
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