Page 181 - GSTL_2nd April 2020_Vol 35_Part 1

2020 ] GOKUL AGRO RESOURCES LTD. v. UNION OF INDIA 83
Nirzar Desai, the Learned Standing Counsel waives service of notice of rule for
and on behalf of the respondents.
2. By this writ application under Article 226 of the Constitution of In-
dia, the writ applicant has prayed for the following reliefs :
“19A. This Hon’ble Court may be pleased to issue a writ striking down
and declaring Entry No. 10 of Notification No. 10/2017-I.T. (Rate), dated
28-6-2017 as being ultra vires Section 5(3) of the IGST Act as well as Article
14 of the Constitution of India.
B. This Hon’ble Court may be pleased to issue a writ of mandamus direct-
ing the Learned Respondents to grant refund of the amount of IGST already
paid by the petitioner pursuant to the impugned Entry No. 10 of Notifica-
tion No. 10/2017-I.T. (Rate), dated 28-6-2017 (as per statement at Annexure
D) along with appropriate interest on such refund;
C. Pending notice, admission and final hearing of this petition, this
Hon’ble Court may be pleased to restrain the Learned Respondents from
taking coercive steps against the petitioner on the basis of the impugned
Entry No. 10 of Notification No. 10/2017-I.T. (Rate), dated 28-6-2017;
D. Ex parte ad interim relief in terms of prayer C may kindly be granted.
E. Such further relief(s) as deemed fit in the facts and circumstances of the
case may kindly be granted in the interest of justice for which act of kind-
ness your petitioner shall forever pray.”
3. This Court vide judgment and order passed in the case of Mohit Min-
erals Pvt. Ltd. v. Union of India [Special Civil Application No. 726 of 2018 and al-
lied petitions] [2020 (33) G.S.T.L. 321 (Guj.)] declared the Entry No. 10 of the No-
tification No. 10/2017-Integrated Tax (Rate), dated 28th June, 2017 as ultra vires
Section 5(3) of the Integrated Goods and Services Tax Act, 2017 as well as Article
14 of the Constitution of India. We may quote paras 254 and 255 of the judgment
rendered in the case of Mohit Minerals (supra). Paras 254 and 255 read as under :
“254. In view of the aforesaid discussion, we have reached to the conclu-
sion that no tax is leviable under the Integrated Goods and Services Tax
Act, 2017, on the ocean freight for the services provided by a person located
in a non-taxable territory by way of transportation of goods by a vessel
from a place outside India upto the customs station of clearance in India
and the levy and collection of tax of such ocean freight under the impugned
notifications is not permissible in law.
255. In the result, this writ-application along with all other connected
writ-applications is allowed. The impugned Notification No. 8/2017-
Integrated Tax (Rate), dated 28th June, 2017 and the Entry 10 of the Notifi-
cation No. 10/2017-Integrated Tax (Rate), dated 28th June, 2017 are de-
clared as ultra vires the Integrated Goods and Services Tax Act, 2017, as they
lack legislative competency. Both the notifications are hereby declared to be
unconstitutional. Civil Application, if any, stands disposed of.”
4. Thus, the principal relief prayed for in this writ application now
stands granted by virtue of the aforesaid decision of this Court. Mr. Uchit Sheth,
the Learned Counsel pointed out that his client had deposited a particular
amount of IGST and as the notification has been struck down, his client is enti-
tled to refund of the said amount of IGST. Mr. Sheth invited our attention to An-
nexure : ‘D’ to the paper book. Annexure : ‘D’ at page : 30 is a statement indicat-
ing payment of IGST on ocean freight. The statement reads thus :

GST LAW TIMES  2nd April 2020  245