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TMI Blog2024 (12) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... Hirak Shah appearing for learned advocate Mr. Nikunt Raval for the respondents. 2. Having regard to the brief controversy involved, with the consent of learned advocates for the respective parties, the matter is taken up for final hearing. 3. Rule returnable forthwith. Learned advocate Mr. Hirak Shah waives service of notice of rule on behalf of the respondents. 4. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs: "(a) 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 val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into either of the two forms of contract i.e. CIF (Cost Insurance and Freight) or CFR (Cost and Freight) for importing goods into India. The petitioner is also engaged in FOB contracts, however the same is not the subject matter in the present case. 5.1 The foreign shipping line prepares the bill of lading while dispatching the goods and once the goods are received by the petitioner, the bill of entry to clear the goods for home consumption is filed. 5.2 In terms of Notification No.8/2017 read with Notification No. 10/2017, the petitioner in his capacity as importers, paid IGST at 5% on reverse charge basis on the ocean freight paid for services of transportation of goods by a vessel by up to the customs clearance station in India, by a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Reverse Charge Mechanism on Import of Goods in India. 5.4 In the matter of GST RFD-01 filed by the petitioner on 14.5.2024, for claiming refund of IGST paid on ocean freight for the month of February, 2019, the petitioners were issued with FORM GST RFD 02 on 26.6.2024 stating that your application for refund is hereby acknowledged against Application Reference Number AA2405241247378. However, on the same day i.e. 26.6.2024, the petitioner was issued with the Notice for Rejection of Application for refund vide FORM GST RFD-08 stating that there is a delay in filing the refund application and hence, asking to show cause as to why the refund application is not liable to be rejected. The petitioner filed a detailed reply to the show cause not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of India & Ors. passed in Special Civil Application No. 19481 of 2023, wherein, it has 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 and others Vs. Union of India and others reported in 1997 (5) SCC 536 the Apex Court has contemplated three situations where the right to refund may arise. Firstly, where the statutory provision under which the tax is levied ..... X X X X Extracts X X X X X X X X Extracts X X X X
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