IN THE HIGH COURT OF JHARKHAND AT RANCHI

W.P.(T) No. 1600 of 2021

M/s. Dhirajlal Velji Atha (HUF) having its office at

Barajamda, West Singhbhum through its Authorized

Signatory namely Nalini Kumar R/o Sector-2, Dhurwa, Ranchi

--- --- Petitioner

Versus

1.The Union of India through its Principal Secretary,

Ministry of Finance, Dept. of Revenue, New Delhi

2.The Central Board of Indirect Taxes and Customs through

Its Chairman, Ministry of Finance, Dept. of Revenue, New Delhi

3.Commissioner, Central Goods and Services Tax & Central

Excise, Division-1, Jamshedpur, East Singhbhum

4.Joint Commissioner (Appeals), Central Goods and Service

Tax & Central Excise, Ranchi

5.Assistant Commissioner, Central Goods & Service

Tax and Central Excise, Division-I, Jamshedpur, East Singhbhum

--- --- Respondents

…....

CORAM: HON’BLE THE ACTING CHIEF JUSTICE

HON’BLE MR. JUSTICE DEEPAK ROSHAN

For the Petitioner : Mr. Ranjeet Kushwaha, Advocate

For the Respondent : Mr. P.A.S. Pati, Sr. S.C. (for CGST)

02/12.01.2023

Heard learned counsel for the parties.

2.

Writ petition was preferred with the following prayer:

i. For issuance of an appropriate writ/order/direction, including

Writ of Declaration, declaring Rule 89(5) (Annexure-2) of the

Central Goods and Services Tax Rules, 2017 (hereinafter

referred to as ‘CGST Rules’ for short), as it originally stood

including its amendment vide Notification No. 26/2018-Central

Tax, dated 13^th June, 2018 (Annexure-4), to the extent in the

formula prescribed for calculation of the refund amount on

account of inverted duty structure, restriction has been imposed

on refund of unutilized Input Tax Credit by disallowing refund

on ‘ Capital Goods’ and ‘Input Services’, as being

unconstitutional and wholly contrary to Section 54(3) (ii) and

the scheme of the Central Goods and services Tax Act, 2017

(hereinafter referred to as ‘CGST Act’ for short).

ii. For issuance of further appropriate writ/order/direction for

quashing /setting aside Notification No. 26/2018-Central Tax,

dated 13^th June, 2018 (Annexure-4), wherein Rule 89(5) of the

CGST Rules has been substituted with retrospective effect i.e.

from 1^st July, 2017, as being wholly arbitrary, unreasonable,

confiscatory in nature and violative of Articles 14 and 19(1)(g)

of the Constitution of India, including contrary to the

provisions of Section 54(3)(ii) of the CGST Act.

iii.

For issuance of further appropriate writ/order/direction for

quashing/setting

aside

the

Order-in-Appeal

No.

30-

31/CGST/JSR/2020 dated 29.10.2020 (Annexure-13), wherein

the Appeal filed by the Petitioner against the order of rejection

of refund application of the Petitioner for refund of the amount

of unutilized Input Tax Credit (hereinafter referred to as ‘ITC’

for short), amounting to Rs.2,85,46,025/- pertaining to the

period January, 2018 to March, 2018 has been dismissed.

iv.

For issuance of further appropriate writ/order/direction,

-2-

including Writ of Mandamus, directing the Respondent –

authorities, particularly Respondent No. 5, to grant refund of

the amount of unutilized ITC of Rs.2,85,46,025/- to the

Petitioner for the period January, 2018 to March, 2018, as the

Petitioner is entitled for refund of the said amount in terms of

substantive provisions contained under Section 54(3)(ii) of the

CGST Act.

3.

However, learned counsel for the petitioner at the outset submits

that vires of Rule 89(5) of the CGST Rules, 2017 substituted w.e.f.

01.07.2017 vide notification dated 13.06.2018 has been upheld by the

Apex Court in the case of Union of India & others Vrs. VKC Footsteps

India Private Limited reported in (2022) 2 SCC 603. The operative

portion of the judgment is quoted hereunder:

142. The above judicial precedents indicate that in the field of

taxation, this Court has only i