2018 Taxo.online 344

R/SPECIAL CIVIL APPLICATION NO. 14155 of 2018 dated 18.09.2018





Central Goods & Services Tax Act, 2017

53 and 54

CGST Rules 2017


Notification No. 21/2018-Central Tax dated 18.4.2018 and Notification No.26/2018-Central Tax dated 13.6.2018

Anant S. Dave, Justice & Biren Vaishnav, Justice


High Court


Represented by: –

Petitioner: – Mr. Mihir Joshi & Ms. Amrita M Thakore

Respondent: –

Order: –

Heard Mr. Mihir Joshi, learned senior counsel with Ms. Amrita Thakore, learned advocate fr the petitioners.

In the context of nature of challenge vis-a-vis prayer clause 17 to hold and declare Rule 89(5) of the Central Goods and Services Tax Rules, 2017 as amended vide Notification No. 21/2018-Central Tax dated 18.4.2018 and Notification No.26/2018-Central Tax dated 13.6.2018 to the extent that the said provision denies grant of refund of unutilized tax credit in respect of tax paid on input services is ultra vires to the Constitution of India and provisions of the Central and Service Tax Act, 2017, our attention is invited to Sections 53, 54 of Chapter XI pertaining to “Refund” of the Act, 2017 and specifically sub-section (3) (ii) along with un-numbered proviso of the very section in juxtaposition to definition of “input”, “input services”, “input tax”, “input tax credit” respectively under Sections 2 (59) (60) (62) and (63) of the Act and Rule 89 about application for refund of tax, interest, penalty, fees or any other amount so existed which came to be later on amended vide notification No.21/2108 dated 18.4.2018 and notification No.26/2018 dated 13.6.2018 and without disputing the fact about existence of power of amending the Rule with retrospective effect, contentions are raised based on grounds of challenge that impugned amended Rule 89(5) denies the benefit of refund of unutilized input tax credit and demand notice dated 21.6.2018 is illegal.

Considering the above, prima facie, we are inclined to issue Notice returnable on 10.10.2018.

Meanwhile there shall be ad-interim relief as prayed for in para 17(D) meaning thereby the impugned demand notice dated 21.6.2018 and its operation and implementation is stayed hereby. Direct service is permitted.

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