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TMI Blog2024 (5) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Additional Advocate General appearing for respondent No. 2 and Mr. Maneesh Sharma, learned counsel appearing for respondents No. 3 to 6. 2. Since common facts and issues are involved in these writ petitions, they are being considered and decided by this common order. WPT No. 53/2024 is taken as the lead case. 3. By way of this writ petition, the petitioner {in WPT No. 53/2024} has prayed for following reliefs:- "10.1 Issue a writ of certiorari or a writ in the nature of certiorari or any other writ, order or direction thereby striking down Clause 5 of the impugned Notification No. 53/2023 - Central Tax dated 02.11.2023 issued by the Central Board of Indirect Taxes & Customs (Annexure P-3) in the manner it is being interpreted by Respondent No. 4 being arbitrary, unreasonable and violative of Article 14 of the Constitution of India; And 10.2 Issue any writ, order or direction reading down the Clause 5 of the impugned Notification No. 53/2023 - Central Tax dated 02.11.2023 issued by the Central Board of Indirect Taxes & Customs (Annexure P-3) to mean that Appeals pertaining solely to orders denying refund are outside the purview Clause 5; And 10.3 Issue a writ of cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, the Central Government issued the Notification No. 1/2017-Compensation Cess (Rate) dated 28.06.2017 ("Notification No. 1"). As per entry provided at serial no. 39, cess on items like coal; briquettes; ovoids and similar solid fuels manufactured from coal, will be leviable at rate of INR 400 per tonne. The petitioner duly discharges its Goods and Services Tax ("GST") liability while procuring coal. As per Section 8 read with serial No. 39 of the Notification No. 1 (Annexure P/5), the petitioner paid to the supplier the prescribed amount of cess which was in turn on the purchase of coal, used for generating electricity. As stated above, the aluminium manufactured, by using the electricity generated in the CPPs, was exported to other countries. Consequently, the outward supply of the petitioner i.e. the export of aluminium to other countries, qualified as a 'zero rated supply' in terms of Section 16 of the Integrated Goods and Services Tax Act, 2017 (for short, the IGST Act). The concept of 'zero rated supply' is envisaged under Section 16 of the IGST Act. As per Section 16(1) of the IGST Act, export of goods / services qualifies as a 'zero rated supply'. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o township and was also being captively consumed, the petitioner preferred refund applications for claiming the unutilized Input Tax Credit (for short, the ITC) of the GST Compensation Cess paid on coal. Section 9(2) of the Cess Act provides that the provisions governing refunds of compensation cess shall be governed by the provisions of CGST Act. Subsequently, the petitioner, in accordance with the provisions of Section 54 of the CGST Act, made an application for claiming refund of the unutilized ITC of GST Compensation Cess in Form GST RFD-01 for the month of November 2021. The refund application was filed on 05.01.2022 for an amount of INR 6,76,25,686. 6. The Respondent No. 5 Assistant Commissioner (State Tax) thereafter issued a show cause notice in Form GST RFD-08 on 05.03.2022. The show cause notice directed the petitioner to file its reply as to why the refund should not be rejected, especially on the ground that supply of electricity to township is a non-business activity. In reply to the show cause notice (Annexure P/7) so issued, the petitioner filed its detailed reply on 24.03.2022 whereby it explained as to how the maintenance of township is a business activity and is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed on 22.03.2022 and the appeal should have been filed within three months therefrom. 8. The respondent no. 3 - Central Board of Indirect Taxes & Customs had issued the Notification No. 53/2023 Central Tax in exercise of powers under Section 148 of the Goods & Services Tax Act, 2017 (GST Act, 2017) providing for the extension of the time limit for the persons who could not file an appeal against the order passed by the proper officer on or before 31.03.2023. Clause 2 of the Notification provides that the person shall file an Appeal on or before 31.01.2024. However, the impugned Clause 5 provides that no appeal under this Notification shall be admissible in respect of a demand not involving tax. 9. Mr. Bharat Raichandani, learned counsel for the petitioner submits that the impugned order dated 05.12.2023 (Annexure P/1) has been passed without taking into consideration that the order was not communicated to the petitioner till the certified physical copy of the order was obtained on 07.08.2023 and accordingly, the impugned order is liable to be quashed and set-aside with a direction to the Respondent No. 4 to hear the appeal on merits. Further, in the appellate proceedings, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of India v. N.S. Rathnam & Sons, {(2015) 10 SCC 681}. Without prejudice, the impugned notification ought to be read down and the impugned order (Annexure P/1) by not appreciating the true purport of clause 5 is liable to be set aside. Notification No. 53 provides that persons who could not file an appeal before the period of 31st March 2023 can file an appeal till 31 January 2024. Notification No. 53 was issued in light of difficulties being faced by the taxpayers and accordingly, the time limit for filing the statutory appeal was extended. Vide the impugned order, it has been observed that the benefit of Notification No. 53 is not applicable in the present case since as per clause 5 thereof, the present issue does not involve any demand of tax. 11. Mr. Raichandani further submits that it is a settled principle of law that a beneficial legislation has to be favourably construed. Reference in this regard is made to the judgment in the case of Bhavnagar University v Palitana Sugar Mills {(2003) 2 SCC 111} wherein it was held that a beneficial legislation has to be liberally interpreted so as to advance its object and not to frustrate it. The impugned order in a cursory manner an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Arvind Gupta v. Assistant Commissioner of State Taxes, WPA No. 2903 of 2024. 14. Mr. Maneesh Sharma, learned counsel appearing for the respondents No. 3 to 6 submits that the contesting party would be the State as the impugned order has been passed by the Joint Commissioner (Appeals), State Tax, Bilaspur and the notification which is under challenge has been issued by the Union Government. He, however submits that an appeal would lie against the order impugned (Annexure P/1) before the Appellate Tribunal and in absence of the Appellate Tribunal, the same can be challenged before the learned Single Judge of this High Court. 15. Mr. Ramakant Mishra, learned Deputy Solicitor General appearing for the Union of India/respondent No. 1 submits that the petitioner has not raised any cogent grounds so as to declare clause 5 of the impugned Notification to be ultra vires. The same is just and proper which needs no interference and the same in tune with the Constitution of India. 16. Mr. R.S.Marhas, learned Additional Advocate General submits that the opening paragraph of the order impugned (Annexure P/1) states that an appeal before the Appellate Tribunal shall lie against the said order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07.08.2023 01.09.2023 / 28.11.2023 05.12.2023 62/2024 08.12.2021 for the month of September, 2021 Rs. 10,36,52,944 01.03.2022 03.03.2022 22.03.2022 07.08.2023 01.09.2023 / 28.11.2023 05.12.2023 63/2024 14.12.2021 for the month of October, 2021 Rs. 100826347 01.03.2022 02.03.2022 22.03.2022 07.08.2023 01.09.2023 / 28.11.2023 05.12.2023 64/2024 30.08.2021 for the month of July, 2021 Rs. 116712689 30.10.2021 19.11.2021 03.12.2021 07.08.2023 01.09.2023 / 28.11.2023 05.12.2023 65/2024 31.12.2020 for the month of November, 2020 Rs. 48247751 06.03.2021 06.03.2021 09.03.2021 07.08.2023 02.09.2023 / 28.11.2023 05.12.2023 18. From the pleadings and documents appended to these petitions, it transpires that basically, the petitioner on the one hand is challenging the order dated 05.12.2023 (Annexure P/1) in all these petitions and further the petitioner also seeks quashing of clause 5 of the impugned notification (Annexure P/3), on the grounds as above. 19. So far as the challenge to the order dated 05.12.2023 passed by the Joint Commissioner (Appeals) State Tax, Bilaspur, is concerned, the same is appellable before the Appellate Tribunal. However, it is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtal of the Department. However, since the orders were uploaded but could not be communicated to the parties concerned, delay was caused in preferring appeals against those orders and the appeals were being dismissed on the ground of delay. To overcome such situation, the impugned notification was brought in so that the appeals could be heard and the delay if any caused in preferring the appeal could be condoned. In the case in hand, admittedly, the appeals were filed by the petitioner-Company before the Joint Commissioner (Appeals), State Tax with some delay and the said appeals stood dismissed vide order dated 05.12.2023 (Annexure P/1) in light of clause 5 of the impugned notification. The learned Joint Commissioner has observed that the appeal was filed by the petitioner Company after a delay of 1 year and 1 month from the prescribed time limit and no cogent reason was afforded for such an inordinate delay. We do not find any error in the order (Annexure P/1) passed by the respondent No. 4. 23. So far as declaring clause 5 of the impugned notification is concerned, a plain reading of the said clause would make it amply clear that no appeal would lie under this Notification in r ..... 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