I N THE HI GH COURT OF UTTARAKHAND AT NAI NI TAL THE HON’BLE CHI EF JUSTI CE MR. G. NARENDAR AND THE HON’BLE JUSTI CE MR. ALOK MAHRA Writ Petition (MB) No. 103 of 2025 M/s Sri Sai Vishwas Polymers --Petitioner Versus Union of India and Another --Respondents Judgment reserved on16.04.2025 Judgment delivered on 30.04.2025 ----------------------------------------------------------------------

Presence:-

Mr. Bharat Raichandani, Mr. Akash Verma and Mr. Deepak Tamta, learned counsel for the petitioner.

Mr. Saurav Adhikari, learned counsel for Union of India/respondent no.1 Mr. Shobhit Saharia, learned counsel for respondent no.2.

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JUDGMENT : (per Mr. Alok Mahra J.

The petitioner, who is the partnership firm, has filed the present writ petition for declaring Rule 96 (10) of the Central Goods and Services Tax Rules, 2017 (for short ‘CGST Rules’) as ultra vires to Section 16 of the IGST Act, 2017 read with Section 54 of the CGST Act, 2017 as well as for setting aside the impugned order dated 03.02.2025 issued by respondent no.2.

2. The brief facts of the case are that petitioner is, inter alia, engaged in the manufacture of Gold Bar & Jewellery etc., falling under Chapter 71 of the Central Excise Tariff Act, 1985; that, accordingly, the petitioner is registered with the GST Department; that, the petitioner is discharging tax liability under CGST Act, 2017, and UKGST Act, 2017 & IGST Act, 2017, as applicable; that, the petitioner is also availing the facility of ITC on inward supplies of goods and supplies being used for providing outward supplies; that, the officers of the State Goods and Service Tax Department conducted audit of the petitioner, wherein it appears that petitioner has claimed refund amounting to Rs.1,05,25,755/- under the head of IGST. That, a show-cause notice No.06/AC/RDR/Sai Vishwas/23-24 dated 26.09.2023 was issued by the respondent no.2 to the petitioner requiring him to show cause as to why alleged inadmissible/erroneous refund amounting to Rs.1,05,25,755/- should not be demanded and recovered from him under Section 74 (1) of the CGST Act, 2017 read with Section 20 of the IGST Rules, 2017 along with Section 50 and penalty under Section 74(1) of the CGST Act, 2017 read with Section of the IGST Act, 2017. That, the personal hearing in respect of the aforesaid show-cause notice, was granted to the petitioner, thereafter, he also filed written submission vide letter dated 16.01.2025. However, respondent no.2 without considering the submissions made by the petitioner, confirmed demand of alleged inadmissible/erroneous refund amounting to Rs.1,05,25,755/- vide order dated 03.02.2025. Hence, the instant writ petition.

3. Learned counsel for the petitioner appearing in support of the petition have drawn the attention of this Court to the provisions of rule 96(10) of the CGST Rules, 2017 would submit that the said rule, inter alia, provides that the persons claiming refund of integrated tax paid on export of goods or services would be required to ensure compliance of certain provisions morefully, enumerated in the said rules. To appreciate his aforesaid contention, rule 96(10) of the said rules is extracted hereinbelow:-

"Rule 96(10)

The persons claiming refund of integrated tax paid on exports of goods or services should not have -

(a) received supplies on which the benefit of the Government of India, Ministry of Finance Notification No. 48/2017-Central Tax, dated the 18th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub- section (i), vide number GSR 1305(E), dated the 18th October, 2017 except so far it relates to receipt of capital goods by such person against Export Promotion Capital Goods Scheme or Notification No. 40/2017-Central Tax (Rate), dated the 23rd October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number GSR 1320(E),dated the 23rd October, 2017 or Notifi