JUDGMENT :

BHARGAV D. KARIA, J.

1. Heard learned advocate Mr. Uchit Sheth for the petitioners and learned advocate Ms. Hetvi Sancheti for the respondents.

2. Both these petitions are preferred with a common issue challenging the notice issued by the respondent authority and therefore, the prayers made therein are also common.

3. Both these petitions were heard analogously and are being disposed of by this common judgment and order.

4. Rule returnable forthwith. Learned advocate Ms. Hetvi Sancheti waives service of notice of Rule for the respondents.

5. Having regard to the controversy in narrow compass, both the petitions are taken up for hearing. For the sake of convenience, Special Civil Application No. 21700 of 2022 is treated as the lead matter.

6. The petitioner supplies “mango pulp” to 100% Export Oriented Unit which further exports such pulp outside the country after minor processing/re-packing.

7. The petitioners are duly registered under the provisions of the Central Goods and Services Tax Act, 2017 (for short, “the GST Act”). When the GST regime was implemented with effect from 1st July 2017, fresh mangoes were listed in the exemption Notification No. 2/2017, while dried mangoes were listed in the Notification No. 1/2017 in Schedule-II, for which rate of tax was 12% (6% CGST + 6% SGST).

8. The Notifications regarding rates of tax in respect of goods as well as exemption are based on Harmonized System of Nomenclature (HSN) as notified by the World Customs Organization. Each entry has the corresponding HSN mentioned against it. The Heading for mangoes in HSN (HS Code 0804) segregates them into only two broad categories: (1) fresh and (2) dried.

9. In the 22nd GST Council Meeting held on 6th October 2017, it was decided to reduce the rate of tax on sliced and dried mangoes from 12% to 5% in view of mango flour was taxable at 5%.

10. On the basis of the decision of the GST Council, dried mangoes were removed from Schedule-II containing goods attracting tax at the rate of 12% and instead a new Entry 30A was inserted in Schedule-I as “mangoes sliced, dried” which attracted tax rate at 5% GST vide Notification No. 34/2017 dated 13th October 2017.

11. The petitioners, therefore, discharged tax liability at the rate of 5% on supply of “mango pulp” as “mango pulp” supplied by the petitioners was nothing, but pulp form of sliced mangoes. On inquiry made by the petitioner on CBEC Mitra Helpdesk with regard to rate of tax applicable to “mango pulp” an E-mail was sent on 19th February 2018 that “mango pulp” (HS Code 0804) GST rate is 5% (including 2.5% CGST and 2.5% SGST).

12. It appears that thereafter, in the 47th GST Council Meeting convened on 28th and 29th June 2022, it was decided to clarify that there was a third category of mangoes in HSN 0804 other than fresh and dried mangoes and that such mangoes were always intended to be taxed at the rate of 12%. A new entry was recommended to be introduced in the Schedule for 12% tax rate.

13. On the basis of the above decision of the GST Council, Notification No. 6/2022 dated 13th July 2022 was issued by inserting Entry No. 16 of Schedule-II in column (3), after the word “guavas” the words and brackets “mangoes (other than mangoes sliced, dried)” were inserted.

14. The Central Board of Indirect Taxes and Customs (CBIC) issued impugned circular dated 3rd August 2022 clarifying that “mango pulp” would be liable to attract GST rate at the rate of 12%. The respondent No. 3-Joint Commissioner of GST, on the basis of such amendment and clarification, issued notice to the petitioners on the ground that “mango pulp” is classified in “Tariff Item” 0804 50 40 and the GST rate was chargeable at 18% from 1st July 2017 to 17th July 2022 by virtue of residuary Entry No. 453 of Schedule-III of Notification No. 1/2017, as the “mango pulp” was not classified in any other category during the said period. By the said notice, a differential amount of tax at the rate of 18% amounting to Rs. 21,15,152/- was sought to b