IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on: 16.04.2024 + W.P.(C) 1298/2023 & CM No.4924/2023 NATIONAL BOARD OF EXAMINATION IN MEDICAL SCIENCES ..... Petitioner versus UNION OF INDIA & ORS. ..... Respondents Advocates who appeared in this case:

For the Petitioner : Mr Kashish Kumar Gupta and Mr Chetan Kumar Shukla, Advs.

For the Respondents : Mrs Amrita Prakash, CGSC with Mr Vishal Ashwani Mehta, Adv.

Mr Aditya Singla, SSC for CBIC with Ms Charu Sharma, Advs.

Mr Rajeev Aggarwal, ASC along with Mr Prateek Badhwar, Ms Shaguftha H. Badhwar & Ms Samridhi Vats, Advs.

Ms. Anushree Narain, Standing Counsel with Ms. Simran Kumari, Advs.

CORAM HON’BLE MR JUSTICE VIBHU BAKHRU HON’BLE MR JUSTICE AMIT MAHAJAN

JUDGMENT

VIBHU BAKHRU, J

1. The petitioner has filed the present writ petition impugning various rejection orders (four in number) passed by respondent nos. 5 Signature Not Verified Digitally Signed W.P.(C) No.1298/2023 Page 1 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 Signature Not Verified Digitally Signed W.P.(C) No.1298/2023 Page 2 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