TMI Blog2019 (11) TMI 1246X X X X Extracts X X X X X X X X Extracts X X X X ..... ny interference. Pn individual dispute should not be allowed to be converted into a PIL. It cannot be ruled that this writ petition may be sponsored by some interested persons who are having any grudge against the private respondents. Accordingly, the Public Interest Litigation petition is dismissed with ₹ 5,000/- cost. - P.I.L. CIVIL No. - 31650 of 2019 - - - Dated:- 18-11-2019 - Pankaj Kumar Jaiswal And Alok Mathur JJ. For the Petitioner : Ritesh Verma For the Respondent : A.S.G. ORDER 1) Vakalatnamas filed by Sri Shubham Tripathi, Advocate on behalf of respondent Nos.4 and 5 are taken on record. 2) Heard Sri Ritesh Verma, learned counsel for the petitioner, Sri S. B. Pandey, learned Senior Counsel assisted by Sri Varun Pandey, learned counsel for respondent Nos.1 to 3 and Sri Shubham Tripathi, learned Counsel for respondent Nos.4 and 5. 3) The petitioner, who is an Advocate by profession, has filed this petition in the nature of Public Interest Litigation and prays for issuance of directions to the respondent No.2 to conduct an independent, free an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect of unutilized input tax credit. The purpose behind the Notification was to prevent refund of tax paid to anybody involved in a business activity which is premised on the usage of tobacco, which are known to be a public health hazard. Since huge amount of public money is involved, the application of the Notification should be retrospective. The Notification, though published on 30.9.2019, as per the petitioner, the same shall be construed as applicable retrospectively, not only for the refund of accumulated credit of excess tax on inputs in the month of September, but even prior thereto. 8) By both the impugned orders dated 4.10.2019, by which respondent No.3 sanctioned refund of unutilized input tax credit of compensation cess, admittedly paid prior to the date of Notification. According to the petitioner, respondent No.3 acted in an arbitrary manner while passing the impugned orders. To prevent the officers of respondent Nos.1 to 3 from acting in any manner, contrary to the said Notification by presuming the same to be applicable prospectively, this petition has been filed in public interest. 9) It is well settled that personal injury or los ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich no refund of unutilized input tax credit of compensation cess shall be allowed, where the credit has accumulated on account of rate of compensation cess on inputs being higher than the rate of compensation cess on the output supplies of such goods (other than nil rated or fully exempt supplies). TABLE S. No. Tariff item, heading, subheading or Chapter Description of Goods (1) (2) (3) 1. 24 Tobacco and manufactured tobacco substitutes Explanation -- (1) In this Table, tariff item , sub-heading , heading and Chapter shall mean respectively a tariff item, sub-heading, heading or chapter, as specified in the First Schedule to the Customs Tariff Act, 1975 (51 of 1975). (2) The rules for the interpretation of the First Schedule to the said Customs Tariff Act, 1975, including the Section and Chapter Notes and the G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in the context of rule 57A to 57J of the Central Excise Rules, 1944 has held that a manufacturer obtains credit for central excise duty on raw material to be used by him in the production of an excisable product immediately it make the requisite declaration and obtains an acknowledgement thereof. Therefore, it is entitled to use the credit at any time thereafter when making payment of excise duty on the excisable product. The Court held that the credit is indefeasible. 5.04. In the case of Eicher Motors Ltd. (supra) , the Apex Court has observed and held as under:- We may look at the matter from another angle. If on the inputs, the assessee had already paid the taxes on the basis that when the goods are utilised in the manufacture of further products as inputs thereto then the tax on these goods gets adjusted which are finished subsequently. Thus a right accrued to the assessee on the date when they paid the tax on the raw materials or the inputs and that right would continue until the facility available thereto gets worked out or until those goods existed. Therefore, it becomes clear that Section 37 of the Act does not enable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lished principle of law that it is necessary to look into the mischief against which the statute is directed, other statutes in pari materia and the state of the law at the time. Section 16 of the CGST Act allows the entitlement to take input tax credit in respect of the post-GST purchase of goods or services within return to be filed under Section 39 for the month of September following the end of financial year to such purchase or furnishing of the relevant annual return, whichever is earlier. Whereas, Rule 117 allows time-limit only up to 27th December 2017 to claim transitional credit on pre-GST purchases. Therefore, it is arbitrary and unreasonable to discriminate in terms of the time-limit to allow the availment of the input tax credit with respect to the purchase of goods and services made in pre-GST regime purchases. Therefore, it is arbitrary and unreasonable to discriminate in terms of the time-limit to allow the availment of the input tax credit with respect to the purchase of goods and services made in pre-GST regime and post-GST regime. This discrimination does not have any rationale and, therefore, it is violative of Article 14 of the Constitution. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ATHUR JJ. 1. I have had the privilege of going through the judgement of my learned brother, but with great respect I regret my inability to agree with the findings recorded therein despite the fact that I agree with the conclusion that the writ petition deserves to be dismissed. 2. The present writ petition filed in the nature of a Public Interest Litigation has been preferred seeking a writ of mandamus to command the respondent no. 2 to conduct an independent free and fair enquiry against the concerned officers in respect of all refund claims of excess tax (compensation cess) paid prior to the notification dated 30/09/19 and accumulated due to inverted tax structure in relation to Tobacco and Manufactured Tobacco Substitutes , including the officer who passed the impugned orders dated 04/10/19, and to prevent the grant of any further refund apart from seeking a direction to respondent no. 3 to file a statutory appeal against the impugned orders dated 04/10/2019. 3. This court at the very outset had confronted the counsel for the petitioner with regard to the maintainability of the petition, and the source of his obtaining the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground of maintainability with the cost of ₹ 5000/-. 7. The dismissal of the writ petition on the ground of maintainability, would preclude the court from proceeding and considering the case on merits. That while dismissing the petition on maintainability, the respondents were not called upon either to justify the orders impugned therein, nor was any counter affidavit sought from any of the parties, and therefore in my opinion that is no occasion for this court to delve into the merits of the case and to judge the validity of the refund orders passed in favour of the respondent no. 4 in 5. That in my considered opinion even otherwise the validity of the refund orders could not have been upheld as the same would be beyond the scope of the writ petition, and otherwise without hearing the revenue or giving them any opportunity, upholding of the said order would necessarily preclude the revenue from challenging the same before the competent authority, which right cannot be denied to them at this stage, while on the other hand creating an indefeasible right in favour of respondent no. 4 in 5. 8. In case the impugned orders are found to be erroneou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and cure its abuse on the basis of monetary and non-monetary directions by the courts. 144. In BALCO Employees' Union v. Union of India [(2002) 2 SCC 333 : AIR 2002 SC 350] this Court recognised that there have been, in recent times, increasing instances of abuse of public interest litigation. Accordingly, the Court has devised a number of strategies to ensure that the attractive brand name of public interest litigation should not be allowed to be used for suspicious products of mischief. Firstly, the Supreme Court has limited standing in PIL to individuals acting bona fide . Secondly, the Supreme Court has sanctioned the imposition of exemplary costs as a deterrent against frivolous and vexatious public interest litigations. Thirdly, the Supreme Court has instructed the High Courts to be more selective in entertaining the public interest litigations. 12. The Hon ble Apex court after referring to its judgment in the case of State of Uttaranchal v. Balwant Singh Chaufal , in the case of Tehseen Poonawalla v. Union of India, (2018) 6 SCC 72 held as under:- 98. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the field of taxation can very well be challenged by the persons aggrieved by the same, and further, there are various safeguards provided in the GST Act to take care of such situations and even to rectify any order passed by the assessing authority, by the superior authority. 14. Looking into the nature of relief claim by the writ petitioner, I am of the view that an individual dispute should not be allowed to be converted into PIL. It cannot be ruled out that his writ petition has not been sponsored by some interested persons who are having any grudge against the private respondent s. Accordingly, the public interest litigation is dismissed with ₹ 5000 cost and the cost shall be deposited in the account of Secretary, High Court Legal Services Subcommittee, Lucknow with a period of 15 days from today, else the cost shall be recovered from the petitioner as arrears of land revenue. Note :- It is to be noted that the instant judgment has been dictated and signed by Hon'ble Mr. Justice Alok Mathur. In this matter a separate judgment of the same date has been dictated and signed by Hon'ble Mr. Justice Pankaj Kumar Jais ..... X X X X Extracts X X X X X X X X Extracts X X X X
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