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TMI Blog2024 (11) TMI 1330X X X X Extracts X X X X X X X X Extracts X X X X ..... s been categorically held that when the Notification itself is struck down, the respondent-authorities cannot insist for levy of IGST on the amount of ocean freight. Such being the position, the main issue falls for determination of this Court is whether the prayers for refund of the amount of levy are maintainable and whether this Court must direct the respondents to refund the same to the petitioner. In case of MAFATLAL INDUSTRIES LTD. VERSUS UNION OF INDIA [ 1996 (12) TMI 50 - SUPREME COURT] , the Apex Court has gone on to hold that for the first type of cases namely unconstitutional levy, the remedy of writ jurisdiction exists, both under Articles 32 and 226 of the Constitution of India respectively. The writ petition filed by the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion under Article 226 of the Constitution of India calling for the records pertaining to the petitioner' case and after going into the validity and legality thereof to declare the levy of IGST on ocean freight paid by the petitioner; in view of Sr. No. 9(ii) of Notification No 8/2017-IT(Rate) dated 28.06.2017 read with Sr. No. 10 of Notification No 10/2017- IT(Rate) dated 28.06.2017 as unconstitutional and ultra vires of the IGST Act, 2017: (b) That this Hon'ble Court be pleased to issue a writ of mandamus or certiorari any other writ, order or direction under Article 226 of the Constitution of India calling for the records pertaining to the petitioner' case and after going into the validity and legality thereof quash and set a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n ocean freight for the month of June, 2018 by submitting FORM GST RFD-01. The said refund claim was specifically stated to have been made on account of unutilized amount of GST paid on Ocean Freight under Reverse Charge Mechanism on import of goods in India. However, on 15.06.2023, the petitioner was issued with the Notice for rejection of refund application vide FORM GST RFD-08 asking to show cause as to why the refund application should not be rejected on the ground of delay. The petitioner filed detailed reply to the said FORM GST RFD-08 by filing FORM GST-RFD- 09 dated 10.07.2023 stating categorically that since the refund is being sought pursuant to the judgement of the Hon ble Apex Court which was dated 19.05.2022, the consequent app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions where the right to refund may arise. Firstly, where the statutory provision under which the tax is levied itself challenged by the assessee on the ground of being violative of some provisions of constitution (question of unconstitutional levy). In this class of cases, the claim for refund arises outside the provision of the Act inasmuch as, this is not situation contemplated by the Act. Secondly, where the tax is collected by the authorities under misconstruction of the statute (including rule or notification) or by erroneous determination (case of illegal levy). In this class of cases, the claim for refund arises under the provision of the Act itself, inasmuch as, these are the situations contemplated by the Act and Rules. Thirdly wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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