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TMI Blog2025 (1) TMI 1131X X X X Extracts X X X X X X X X Extracts X X X X ..... ught to be given to such notification is wholly without jurisdiction, manifestly arbitrary and violating Article 14 of the Constitution of India; B. This Hon'ble Court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other writ, order or direction quashing and setting aside summons (annexed at Annexure B)as well as recovery proceedings on the basis of retrospective operation to Notification No. 54/2018-Central Tax dated 9.10.2018 as being wholly without jurisdiction, arbitrary and illegal; C. Pending notice, admission and final hearing of this petition, this Hon'ble Court may be pleased to stay further proceedings pursuant to impugned summons (annexed at Annexure B) issued to Petitioners; D. Ex parte ad interim relief in terms of prayer C may kindly be granted; E. Such further relief(s) as deemed fit in the facts and circumstances of the case may kindly be granted in the interest of justice for which act of kindness your petitioners shall forever pray." 3. Brief facts of the case are that petitioner is a private limited company and is engaged in manufacture and export of flexible intermediate bulk containers/ jumbo bags, contain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claiming refund of integrated tax paid on export of goods or services should not have received supplies on which the supplier has availed the benefit of notification No. 48/2017-Central Tax dated 18th October, 2017 or notification No. 40/2017-Central Tax (Rate) dated 23rd October, 2017 or notification No. 41/2017- Integrated Tax (Rate) dated 23rd October, 2017. It is therefore, the case of the petitioner that effectively refund was sought to be denied to exporters who had procured goods from suppliers who had availed benefit of certain notifications. This sub-rule was retrospectively substituted by Notification No. 3/2018- Central Tax dated 23.1.2018 and therefore, as such the relevant sub-rule was now sub-rule (10) of Rule 96 of the CGST Rules and there were additions made to the list of notifications benefit of which should not have been taken by suppliers from whom exporters received the goods in order to claim refund of IGST. 10. It is the case of the petitioners that the petitioners were not receiving supplies from any such suppliers and hence as such was not concerned with the said sub-rule (10). On 4.9.2018 sub-rule (10) of Rule 96 of the CGST Rules was retrospectively sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Central Board of Indirect Taxes and Customs vide circular number 70/44/2018- GST dated 26.10.2018. 17. On the basis of such amendments, Special Civil Application No. 15091 of 2018 was disposed of as infructuous after recording the subsequent developments by way of issuance of Notifications No. 53 and 54/2018-Central Tax. 18. The Officers of the Directorate General of GST Intelligence visited the premises of the petitioners in February 2021. They demanded duty from the petitioners on the ground that Rule 96(10) (b) as amended by Notification No. 54/2018-Central Tax dated 9.10.2018 is effective retrospectively from 23.10.2017 relying upon the judgement of this Court in the case of Cosmo Films Ltd. v/s Union of India (Special Civil Application No. 15833 of 2018 decided on 20.10.2020), wherein it is observed in para 8.10 that the Notification No. 54/2018 is made applicable retrospectively from the date when Rule 96 (10) of the CGST Rules came into force and not with effect from 23rd October 2017, as was amended in the previous Notifications. 19. It is the case of the petitioner that inadvertently Notification No. 54/2018 was made applicable with retrospective effect from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Sheth for the petitioners submitted that the impugned summons is issued on the basis of decision of this Court in case of Cosmo Films Limited v. Union of India rendered in Special Civil Application No.15833 of 2018. It was submitted that by order dated 19th September, 2024 this Court has passed rectification order and therefore, the impugned summons is not tenable by applying Notification No.54/2018 with effect from 23rd October, 2017 instead of prospectively from 9th October, 2018. 27. This Court in case of Cosmo Films Limited(supra) has passed the following rectification order: "33. Considering the submissions made by learned advocate Mr. Rastogi and the findings recorded here in above from para nos. 8.1 to 9 and on perusal of the Notification No.54/2018 dated 9th October, 2018 we are of the opinion that there is a mistake apparent on record in CAV judgment dated 20th October, 2020. 34. It would therefore, be necessary to refer to Notification No.54/2018 which has come into effect by Central Goods and Service Tax (Twelfth Amendment), Rules 2018 with effect from 9th October, 2018 which reads as under: "G.S.R......(E). In exercise of the powers conferred by section 164 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1305 (E), dated the 18th October, 2017 except so far it relates to receipt of capital goods by such person against Export Promotion Capital Goods Scheme or notification No. 40/2017-Central Tax (Rate), dated the 23rd October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1320 (E), dated the 23rd October, 2017 or notification No. 41/2017- Integrated Tax (Rate), dated the 23rd October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1321 (E), dated the 23rd October, 2017 has been availed; or (b) availed the benefit under notification No. 78/2017-Customs, dated the 13th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1272(E), dated the 13 th October, 2017 or notification No. 79/2017- Customs, dated the 13th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1299 (E), dated the 13th October, 2017 except so far it relates to receipt of capital goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be substituted by words "with effect from 9th October, 2018". Para 8.10 shall read as under: "8.10. It is pertinent to note that the Notification No. 54/2018 is made applicable prospectively with effect from 9th October, 2018." vi) Para 8.13 of the CAV judgment and order shall stand substituted and read as under: "Notification No. 48/2017C.T. dated 18th October 2017 provides for granting benefit of exemption from payment of duty and Explanation thereto states that, "Advance Authorization" means an authorization issued by the Director General of Foreign Trade under Chapter4 of the Foreign Trade Policy 201520 for import or domestic procurement of inputs on pre-import basis for physical exports. Therefore, as the petitioner has availed the benefits of AA License as per Notification No. 48/2017 CT (Rate) dated 23rd October, 2017 and has enjoyed the exemption of GST on the supply of the goods from the registered supplier for the purpose of export on fulfilling the conditions prescribed therein, the petitioner would not be entitled to the benefit of refund of IGST paid on the export of the goods. It appears that, thereafter, by Notification No. 39/2018 CT dated 4th September 2018 h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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