Case Law Details
Netcore Solutions Pvt. Ltd. Vs Union of India & Ors. (Bombay High Court)
The Hon’ble Bombay High Court allowed the writ petition and set aside the rejection order. The original records were called for. There was no record of service of notice or order in the file.
The petitioner is a technology solutions service provider. It exports services outside India. It filed refund claims under section 54 of the CGST Act. However, no deficiency memo was issued. No show cause notice was issued. On the online portal, the refund was shown as processed. No order was, however, uploaded. The petitioner, on follow up, was provided hard copy of the order rejecting the refund claim for non-submission of documents. Such order was challenged in writ petition contenting that procedure prescribed in the rules has not been followed.
The Hon’ble Bombay High Court allowed the writ petition and set aside the rejection order. The original records were called for. There was no record of service of notice or order in the file. There was no hearing granted to the petitioner. The counsel for the Department made a fair statement that procedure provided under Rule 92 would be followed. The deputy commissioner was directed to grant personal hearing to the petitioner and pass an order in 15 days.
The matter was argued by Ld. Counsel Bharat Raichandani
FULL TEXT OF THE JUDGMENT/ORDER OF BOMBAY HIGH COURT
1. We have heard learned Counsel for the parties. This Petition, under Article 226 of the Constitution of India is filed praying for the following reliefs:-
“a) that this Hon’ble Court be pleased to issue a Writ of Mandamus or a writ in the nature of Certiorari or any other writ, order or direction under Article 226 of the Constitution of India calling for the records pertaining to the Petitioner’s case and after going into the validity and legality of the provisions set aside impugned ex-parte order dated 14.09.2019 (Exhibit “A1”);
b) that this Hon’ble Court be pleased to issue a Writ of Mandamus or a writ in the nature of Certiorari or any other writ, order or direction under Article 226 of the Constitution of India calling for the records pertaining to the Petitioner’s case and after going into the validity and legality of the provisions direct the respondent No.2 to sanction refund of IGST amounting to Rs.69,89,241/-immediately along with interest @24% forthwith to the petitioner;
c) that this Hon’ble Court be pleased to issue a Writ of Mandamus or a writ in the nature of Certiorari or any other writ, order or direction under Article 226 of the Constitution of India calling for the records pertaining to the Petitioner’s case and after going into the validity and legality of the provisions direct Respondent No. 2 to re-adjudicate the claim for refund afresh after providing an opportunity of hearing;
d) that this Hon’ble Court be pleased to issue a Writ of mandamus or any writ in the nature of mandamus or any other appropriate Writ /order/ direction under Article 226 of the Constitution of India and after calling for the records of the petitioner and going into the validity and legality of the provisions, in the alternative, direct the respondent No.2 to sanction provisional refund @ 90% of the disputed amount in terms of section 54 (6) of the Central Goods and Services Tax Act, 2017 read with Central Goods and Services Rules, 2017 thereof;
e) that this Hon’ble Court be pleased to issue a Writ of Mandamus or a writ in the nature of Certiorari or any other writ, order or direction under Article 226 of the Constitution of India calling for the records pertaining to the Petitioner’s case and after going into the validity and legality of the provisions hold that the impugned ex- parte order was not received by the petitioner until the same was collected by hand on 10.10.2022;
f) for interim and ad-interim reliefs in terms of prayer (a) to (e) above;
g) for costs of this Petition;
h) pass such other order and grant such reliefs as the nature and circumstances of the present case may require.
2. The primary grievance as made by the Petitioners is that in issuing the impugned order due procedure as mandated by law was not followed. Petitioner was not heard before passing the impugned order and thus the impugned order on such account itself is bad in law.
3. Date, learned Counsel for the Revenue states that she has taken instructions. The records of the department were examined and that the documents with regard to the service of notice to the Petitioner could not be located. It is also not disputed that the impugned orders came be to be passed without an opportunity being granted to the Petitioner to submit documents and being heard.
4. In this view of the matter, Ms. Date, on instructions, takes a fair stand that the impugned orders can be set aside and a fresh procedure would be followed by the Deputy Commissioner of Central Tax (GST), Division-III. He would issue a notice to the Petitioner of hearing, as also call upon the Petitioner to produce relevant documents.
5. Let such notice be served to the Petitioner within a period of ten days from today. The same be appropriately replied by the Petitioner within a period of seven days thereafter. After such reply/documents are submitted to the Deputy Commissioner of Central Tax (GST), he shall fix a date on which the Petitioner shall grant a personal hearing and thereafter shall pass appropriate orders within fifteen days.
6. All contentions of the parties in that regard are required to be expressly kept open.
7. We dispose of the Petition in terms of the aforesaid observations.
8. Disposed of. No costs.
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