JUDGEMENT

VIBHU BAKHRU, J

1. The petitioner has filed the present writ petition impugning various rejection orders (four in number) passed by respondent nos. 5

Page 2 of 56 and 6 rejecting the petitioner’s claim for refund of the Goods and Services Tax (GST) in respect of the part of the Financial Year 2020- 21 – April, 2020 to August, 2020. The petitioner claims that it had paid the tax under a mistaken understanding of the law.

2. The petitioner also impugns a Circular No.151/07/2021-GST dated 17.06.2021 (hereafter the impugned circular), inter alia, clarifying that the Central and State Educational Boards, such as the petitioner, are educational institutions insofar as they provide services for conduct of examination, including any entrance examination, to the students. Accordingly, such services would be charged at NIL rate in terms of Notification No.12/2017 – Central Tax (Rate) dated 28.06.2017 (hereafter the 2017 Notification) issued by the Government of India under Section 11 of the Central Goods and Services Tax Act, 2017 (hereafter the CGST Act). However, the services rendered by such State or Central Boards, such as providing accreditation to an institution or to a professional [accreditation fee such as fee for Foreign Medical Graduate Examination (FMGE) screening test] would be chargeable to GST at the rate of 18%.

3. It is the petitioner’s case that the 2017 Notification as amended by the subsequent notifications, does not admit the clarification provided by the impugned circular. According to the petitioner, the impugned circular is contrary to the 2017 Notification. The petitioner claims that it is an educational institution and the services rendered by it are exempted from payment of GST (chargeable at NIL rate) in terms Page 3 of 56 of the 2017 Notification including in respect of accreditation fees and examination fees collected for conducting screening tests.

FACTUAL CONTEXT

4. The petitioner, is an autonomous body of Ministry of Health and Family Welfare and was established by the Government of India, inter alia, with an objective to improve the standard of post-graduate medical examination in modern medicines.

5. In order to maintain the standards of medical and dental education at undergraduate and post graduate levels throughout the country, Medical Council of India and Dental Council of India have been constituted under the Indian Medical Council Act, 1956 (hereafter IMC Act) and Dentists Act, 1956 (hereafter DA Act), respectively. The said councils are charged with the function, amongst others, to make recommendations to the Central Government regarding the matters pertaining to courses of study and the examination to be undertaken for the relevant professional qualifications.

6. The Medical Council of India notified a single and a uniform entrance examination called the National Eligibility-cum-Entrance Test (hereafter NEET) for admission to all medical educational institutions at the post-graduate level on an all India basis by Notification No. MCI- 18(1)/ 2010-MED/49070 dated 21.12.2010. Similarly, Dental Council of India also notified a uniform entrance examination, that is, NEET for Masters of Dentist Surgery by Revised MDS Course Regulations, 2007.

The aforementioned notifications were initially quashed by the Page 4 of 56 Supreme Court in the case of Christian Medical College Vellore & Ors.

v. Union of India & Ors.: (2014) 2 SCC 305. But thereafter, in review, the aforesaid order was recalled by an order dated 12.04.2016 in Medical Council of India v. Christian Medical College Vellore & Ors.: (2016) 4 SCC 342.

7. Section 10D of the IMC Act, which provides for a uniform entrance examination to all medical educational institutions at the undergraduate and post graduate level through a Designated Authority, was inserted in IMC Act by the Indian Medical Council (Amendment) Act, 2016 dated 24.05.2016. Correspondingly, in order to conduct a uniform entrance examin