IMPORTANT POINT
The court held that refund claims for IGST on ocean freight are valid if filed after notifications imposing the levy are struck down as unconstitutional.

JUDGMENT :

D.N.Ray, J.

1. Heard learned advocate Mr.Sanket Gupta appearing for learned advocate Mr.Anand Nainawati for the petitioner; learned advocate Mr.Param V.Shah for the respondent No.1 and learned advocate Mr.Hirak Shah appearing for learned advocate Mr.Nikunt Raval for the respondent Nos.2 and 3.

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.Param V.Shah waives service of notice of rule on behalf of the respondent No.1 and learned advocate Mr.Hirak Shah waives service of notice of rule on behalf of the respondent Nos. 2 and 3.

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 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 aside the rejection O/O dated 15.7.2023 by Respondent No.2. and impugned Order-in-Appeal No. KCH-EXCUS-000-APP-070-2023-GST-JC dated 21.11.2023 issued on 28.11.2023 by Respondent No.3.

(c) 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 directing the Respondents to refund the amount of Rs.20,44,913/- paid by the petitioner as IGST on ocean freight of goods imported during June 2018 along with the appropriate interest for delayed refund;

(d) For any other ad interim relief as this Hon'ble Court may deem fit:

(e) For costs of the Petition:

(f) For such further and other relief as the nature and circumstances of the case may warrant.

5. The short question that arises for adjudication of this Court is whether the petitioner is eligible for refund of IGST on ocean freight paid by the petitioner in pursuance of Notification No.8/2017 and Notification No.10/2017 dated 28.06.2017, during June 2018, when such Notifications have been struck down by this Court in case of M/s. Mohit Minerals Pvt. Ltd. Vs. Union of India & Ors reported in 2020 (1) TMI 974, and the Hon’ble Apex Court has confirmed the same by judgement/order dated 19.5.2022 in case of Union of India and others Vs. Ms. Mohit Minerals Pvt. Ltd. reported in 2022 (5) TMI 968.

6. Pursuant to the aforesaid judgements, the petitioner filed a refund claim for the period June, 2018 on 29.03.2023 for the IGST paid on 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-RFD09 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 application seeking refund could not be rejected on the ground of delay.

7. However, the respondent No