9911796707
TMI Blog2024 (10) TMI 492X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.2017 to be ultra-vires the provisions of the IGST Act and Article 14 and 265 of the Constitution of India even qua imports made on FOB basis; B. This Hon'ble Court may be pleased to declare that levy of tax under the IGST Act on payment of ocean freight on reverse charge basis even qua FOB contracts once such freight element is part of the import value of goods which has been subjected to tax under the IGST Act is contrary to the judgement of Hon. Supreme Court in the case of Mohit Minerals Pvt. Ltd. (supra) and therefore unconstitutional; C. This Hon'ble Court may be pleased to issue a writ of certiorari or writ in the nature of certiorari or any other appropriate writ or order quashing and setting aside order dated 30.8.2023 (annexed at Annexure B) withdrawing refund already sanctioned to the Petitioner; D. Without prejudice to the above and in the alternative, this Hon'ble Court may be pleased to declare that at least the refund of IGST paid on ocean freight qua CIF imports ought not to have been withdrawn by the impugned order dated 30.8.2023 (annexed at Annexure B); E. This Hon'ble Court may be pleased to declare Entry No. 1 of Notification No. 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is required to be made by the petitioner irrespective of whether the imports are on CIF or FOB basis. 8. It is the case of the petitioner that the petitioner is an importer as defined under the Customs Act and as per the Entry No.10 of Notification No. 10/2017-IGST (Rate) dated 28.06.2017, the petitioner became liable to pay tax on freight for transportation of goods by a vessel from a place outside India to the Indian Customs station even though IGST on total value of imports including freight amount had already been paid by the petitioner at the time of clearance of the goods for home consumption. 9. It is the case of the petitioner that the petitioner had filed an intervention application before Hon'ble Supreme Court pursuant to matter in case of Union of India v. Mohit Minerals Pvt. Ltd (judgment dated 19.05.2022 rendered in Civil Appeal No. 1390 of 2022 and allied matters, which the Union Government had filed before the Hon'ble Apex Court as Entry No.10 of the Notification No.10/2017 -IGST Rate dated 28.06.2017 was struck down by this Court as being ultra vires the provisions of the IGST Act as well as being unconstitutional. 10. It is the case of the petitioner that after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x-parte withdrawing refund on the ground that no representative of the petitioner appeared. It is the case of the petitioner that the impugned order was issued on 18.9.2023 and received by the Petitioner on 7.10.2023 and the impugned order has been passed on the premise that the benefit of judgment in the case of Mohit Minerals Pvt. Ltd (supra) is not available to FOB imports. 17. Being aggrieved by the impugned order, the petitioner has preferred the present petition. 18. Learned advocate Mr. Uchit Sheth for the petitioner submitted that this Court in case of Mohit Minerals Pvt. Ltd v. Union of India and others reported in 2020 SCC OnLine Guj 736 has struck down the Notification No.10/2017-Integrated Tax (Rate) dated 28th June, 2017 so far as levy of IGST on the value of Ocean Freight is concerned. It was pointed out by learned advocate Mr. Sheth that this Court was considering the issue of importation of coal from various countries on FOB (Free on Board) and CIF(Sum of Cost, Insurance and Freight) basis. It was submitted that in case of both type of transactions, this Court concluded that Ocean Freight levied by Notification No.10/2017 is not legal. 19. It was further pointed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and the same has been upheld by the Supreme Court, in our opinion, following the mandate of the settled principle of law as laid down in "Ms. Kusum Ingots & Alloys Ltd vs Union Of India And Anr."(AIR 2004 SC 2321), the notification in no manner was available to the State Authorities to be applied as it would amount to applying an illegal notification. For this reason also, the show cause notice is rendered without jurisdiction." 23. It was therefore, submitted by learned advocate Mr. Sheth that from any point of view, the levy of IGST on Ocean Freight on the FOB transaction is not valid since Notification No.10/2017 has been struck down by this Court which is upheld by Hon'ble Apex Court. 24. On the other hand, learned advocate Ms. Hetvi Sancheti for the respondent submitted that the Hon'ble Apex Court in Union of India and another v. Mohit Minerals Private Limited through Director (supra) while considering the validity of the Notification No.10/2017 in para no. 168 to 170 has referred to only CIF contract and not FOB contract for importation of the goods and accordingly, the decision of this Court so far as striking down of levy of IGST on transaction on FOB basis is not appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to Government.] [ Substituted by Act 30 of 1963, Section 2, for sub-Section (2) (w.e.f. 1-10-1963).]" "14. Valuation of goods. (1) For the purposes of the Customs Tariff Act, 1975 (51 of 1975), or any other law for the time being in force, the value of the imported goods and export goods shall be the transaction value of such goods, that is to say, the price actually paid or payable for the goods when sold for export to India for delivery at the time and place of importation, or as the case may be, for export from India for delivery at the time and place of exportation, where the buyer and seller of the goods are not related and price is the sole consideration for the sale subject to such other conditions as may be specified in the rules made in this behalf: Provided that such transaction value in the case of imported goods shall include, in addition to the price as aforesaid, any amount paid or payable for costs and services, including commissions and brokerage, engineering, design work, royalties and licence fees, costs of transportation to the place of importation, insurance, loading, unloading and handling charges to the extent and in the manner specified in the rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be paid by the taxable person: Provided that the integrated tax on goods [other than the goods as may be notified by the Government on the recommendations of the Council ] imported into India shall be levied and collected in accordance with the provisions of section 3 of the Customs Tariff Act, 1975 (51 of 1975) on the value as determined under the said Act at the point when duties of customs are levied on the said goods under section 12 of the Customs Act, 1962 (52 of 1962)." 28. Considering the above provisions, it is not in dispute that IGST as per proviso to section 5(1) is leviable on the on the value as determined in accordance with the provisions of section 3 of the Customs Tariff Act, 1975 (51 of 1975) at the point when duties of customs are levied on the said goods under section 12 of the Customs Act, 1962 (52 of 1962)and value of goods includes the cost, freight and insurance at the place of importation and therefore, once the IGST is paid on value of goods including the freight, cost and insurance, it would not make any difference between the transactions is on CIF basis or FOB basis, as in both the cases IGST would be payable as per provision of section 5(1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
