TMI Blog2024 (3) TMI 388X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned Notification has already been declared as ultra vires and accordingly, the present petition deserves to be allowed. The claim for refund of the petitioner towards ocean freight is required to be favourably considered and respondent No. 2 is directed to verify the amount of refund and grant such refund of the amount of IGST paid on ocean freight by the petitioner pursuant to the Entry No. 10 of the above notification within eight weeks from the date of receipt of copy of this order along with the statutory rate of interest. Petition allowed. - HONOURABLE MR. JUSTICE BHARGAV D. KARIA AND HONOURABLE MR. JUSTICE NIRAL R. MEHTA Appearance: For the Petitioner(s) No. 1: Uchit N Sheth (7336). For the Respondent(s) No. 2: Mr Siddharth H Dav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest thereon amounting to Rs. 01,51,305/- and penalty amounting to Rs. 50,875/-, which was paid by the petitioner in view of Entry No. 10 of the Notification No. 10 of 2017 dated 28th June, 2017. It was also prayed to set aside the order dated 25th September, 2023 rejecting the refund claim of the petitioner as above. 4. With the commencement of levy of Goods and Services Tax under the law with effect from 01st July, 2017, Notification No.8 of 2017 dated 28th June, 2017 provided that IGST at the rate of 5% shall be levied on inter-state supply of services when the goods are transported in a vessel etc. Another Notification No. 10 of 2017 dated 28th June, 2017 came to be issued notifying that in respect of services supplied by a person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to reject such refund on the ground that it could not be granted by the authority under the GST Act in respect of levy which was held to be unconstitutional. The petitioner filed reply requesting for refund since the amount had been paid under protest. 5.4 The second respondent, however, rejected the refund by impugned order on the ground that refund as a result of levy being held unconstitutional can be claimed only by way of suit or writ petition and that the same cannot be granted under Section 54 of the GST Act. 6. It is trite law that once the Apex Court declares a Notification being ultra vires and unconstitutional, such law becomes the law of land and is liable to be followed by the respondent authorities without raising any objectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in case of Mafatlal Industries Ltd. v. Union of India reported in (1997) 5 SCC 536 . 6.2 In support of such submission, petitioner also placed reliance on the following decisions. (a) Bharat Oman Refineries Ltd. v. Union of India decided in Special Civil Application No. 8881 of 2020 by order dated 18th August, 2020; (b) Torrent Power Ltd. v. Union of India decided in Special Civil Application No. 2603 of 2021 by order dated 04th August, 2022; (c) The Sandesh Ltd. v. Union of India decided in Special Civil Application No. 12757 of 2021 by order dated 04th August, 2022. 7. Considering the above legal position, the petitioner is entitled to the refund of ocean freight paid under protest in view of the decision of the Apex Court in case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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