Rule 96(10) of the CGST Act was declared unconstitutional, thus quashing all related proceedings, affirming rights to refund under the IGST Act without a saving clause.

ORDER:

S.R.KRISHNA KUMAR, J.

In this petition, petitioner seeks the following reliefs:

“a) To issue order(s), directions, writ(s) in the nature of Certiorari quashing the Notification No.53/2018-CT dated 09.10.2018 vide Annexure-F and Notification No.54/2018-CT dated 09.10.2018 vide Annexure-G issued by the Respondent No.3.

b) To issue order(s), directions, writ(s) in the nature of Certiorari quashing the SCN dated 07.10.2020 issued by the Respondent No.5 annexed at Annexure-R;

c) To issue order(s), directions, writ(s) in the nature of mandamus allowing the pending refund of IGST paid by the Petitioner.

d) To issue order(s), directions, writ(s) in the nature of mandamus holding that no interest is payable on the amount of IGST paid to comply with Explanation to Rule 96(10) inserted by Notification No.16/2020-CT dated23.03.2020, if paid by the petitioner;

e) In the alternative and without prejudice to prayer (a), to issue a writ of mandamus directing Respondents to allow the petitioner to amend the Shipping Bills, invoices and the GST Return and consider the exports undertaken by the Petitioner as Zero-rated Supply undertaken under Bond or Letter of Undertaking and in effect allow them to claim the refund of the unutilized Input Tax Credit in terms of Section 16(3)(a) of the IGST Act read with Section 54 of the CGST Act and Rule 89 of the CGST Rules by filing an manual application in this regard;

f) To issue order(s), directions, writ(s) or any other relief as this Hon’ble Court deems it fit and proper in the facts and circumstances of the case in the interest of justice.”

2. Heard learned Senior Counsel for the petitioner and learned HCGP for respondent Nos.2 and 6 and learned counsel for respondent Nos.1, 3 to 5 and 7 and perused the material on record.

3. In addition to reiterating the various contentions urged in the petition and referring to the material on record, learned Senior Counsel for the petitioner invited my attention to the impugned Show Cause Notice dated 07.10.2020 issued by respondent No.5 in order to point out that the said Show Cause Notice was issued pursuant to the Notification dated 09.10.2018 under which, Rule 96(10) was inserted into the CGST Act by way of amendment w.e.f. 23.10.2017. It is submitted that the validity of the said Notification was challenged before the Kerala High Court in the case of Sance Laboratories Private Limited V. Union of India – (2024) 23 Centax 435 (Ker.) wherein the said Rule 96(10) was struck down as unconstitutional vide order dated 10.10.2024. It is submitted that prior to the striking down of the said Rule 96(10)on 10.10.2024, the respondent had already omitted the said Rule by issuing a Notification dated 08.10.2024, which was noticed by the Kerala High Court in the said order, which proceeded to declare that all proceedings between 23.10.2017 and 08.10.2024 would stand abated and deserve to be quashed.

4. It is submitted that the aforesaid judgment of the Kerala High Court has been subsequently followed by the other High Courts including the Uttarakhand High Court, Gujarat High Court, Delhi High Court and Bombay High Court in the petitioner’s own case and as such, the impugned Show Cause Notice and all further proceedings in pursuance thereto deserve to be quashed.

5. Per contra, learned HCGP for respondent Nos.2 and 6 and learned counsel for respondent Nos.1, 3 to 5 and 7 submits that there is no merit in the petition and that the same is liable to be dismissed.

6. As rightly contended by learned Senior Counsel for the petitioner, the Kerala High Court in t