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IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION

APPELLATE SIDE

BEFORE:

THE HON’BLE JUSTICE OM NARAYAN RAI

WPA 27066 of 2024

M/s. Adani Wilmer Limited & Anr.

v.

Assistant Commissioner of State Tax & Ors.

For the Petitioners : Mr. Abhratosh Majumdar, Adv.

Mr. Rahul Dhanuka, Adv.

Mr. Niraj Baheti, Adv.

For the State : Ms. Sumita Shaw, Adv.

Mr. Saptak Sanyal, Adv.

For the CGST Authority : Mr. Bhaskar Prosad Banerjee, Adv.

Mr. K.K. Maiti, Adv.

For the UOI : Mr. Vipul Kundalia, Sr. Adv.

Mr. Soumen Bhattacharjee, Adv.

Mr. Raunak Seal, Adv.

Mr. Dhirodatto Chaudhuri, Adv.

Hearing Concluded on : 25.02.2026

Judgment on : 25.02.2026

Om Narayan Rai, J.:-

1. This writ petition assails an order in appeal dated May 11, 2024 passed by

the appellate authority under Section 107 of the West Bengal Goods and

Services Tax, 2017/Central Goods and Services Tax, 2017 (hereafter “the

said Act of 2017”).

2. The petitioner no.1 (hereafter “the petitioner”) is a supplier of certain goods

including edible oil.

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3. The petitioner had applied for refund of accumulated unutilised Input Tax

Credit (ITC) for the month of May 2021 arising from inverted duty structure.

To wit, the rate of tax on inputs used by the petitioner was higher than the

rate of tax on the outward supplies of the manufactured foods of the

petitioner. Such application for refund of unutilised ITC as aforesaid was

filed before the relevant GST authority on June 16, 2023.

4. The said application was rejected by the proper officer by an order dated

June 5, 2024. The main reason for rejection of the petitioner’s claim for

refund was a clarificatory circular bearing no.181/13/2022-GST dated

November 10, 2022 issued by the Central Government and the

corresponding State circular bearing no.13/2022 dated November 14, 2022

whereby it had been clarified, (while referring to the restrictions imposed by

notification no.1397-FT dated August 23, 2022) that - “restriction imposed by

the said notification would be applicable in respect of all refund applications

filed on or after 18.07.2022.”

5. Feeling aggrieved by the said order of rejection, the petitioner approached

the appellate authority.

6. The appellate authority also dismissed the petitioner’s appeal by the order

impugned, thereby agreeing with the reasons cited by the original authority.

Being thus aggrieved, the petitioner is now before this Court by way of the

present writ petition.

7. Mr. Majumdar, learned senior advocate appearing for the petitioner submits

that the Central Circular dated November 10, 2022 and the State Trade

Circular dated November 14, 2022 cannot be applied retrospectively so as to

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curtail the petitioner’s right to claim refund that had accrued to the

petitioner in terms of the provisions of Section 54(1) of the said Act of 2017.

8. It is submitted by Mr. Majumdar that upon filing the petitioner’s return

under Section 39 of the said Act of 2017, the cause of action to claim refund

arose. It is submitted that once such cause of action has accrued, and the

legislature has granted a time within which claim of benefit of refund can be

made, such time could not have been subsequently curtailed by an executive

circular with retrospective effect.

9. In support of his contention that the retrospectivity attributed to the said

circulars has been found to be inconsistent with the legislative mandate of

Section 54(1) of the said Act of 2017 by several High Courts across the

country, Mr. Majumdar has relied on the following judgments: -

1. Patanjali Foods Ltd. v. Union of India, reported at (2025)

28 Centax 75 (Guj),

2. Vaibhav Edibles Pvt. Ltd. v. State of U.P. reported at (2025)

37 Centax 199 (All.),

3. Shree Arihant Oil and General Mills v. Union of India, the

Joint Commissioner, State Tax Circle Ganganagar, Goods &

Service Tax Council reported at 2025 (9) TMI-968 and

4. M/s Priyanka Refineries Pvt. Ltd. v. Deputy Commissioner

ST and Ors. decided by the Hon’ble High Court at Andhra

Pradesh on January 29, 2025.

10. He also relies on an orde