Page 79 - GSTL_16th July 2020_Vol. 38_Part 3

2020 ] K.P. SUGANDH LTD. v. STATE OF CHHATTISGARH 317
9. However, where the collection of the tax is itself without the authori-
ty of law, then the refund of tax collected thus, is also not bound by the rigour of
that law. The provisions of Section 11B and the rigour/procedure thereof would
not be applicable or attracted to the present case. Admittedly, the petitioner has
suo motu, complied with the provisions of Rule 2(1)(d)(iv) and having done so,
the petitioner should not be expected to suffer on account of compliance. For the-
se reasons, I am of the view that this writ petition should succeed and the
amount of tax remitted be refunded to the petitioner within a period of four
weeks from date of receipt of a copy of this order.
10. The only fault that perhaps, may be attributed to the petitioner is
one of adherence to the rule of law. As the Division Bench has stated at para-
graph-2, ‘We may note that this is a harsh case, where the appellant ended up paying
Service Tax, even though, it was a recipient of the service and that too, prior to the
amendment, brought in, with effect from 18-4-2006. By way of amendment, Section 66A
was inserted in the Finance Act, 1994. By virtue of this provision, Service Tax could be
collected from the recipient of service, by way of a deeming fiction, where service provider
was located outside the Country’.
11. In the light of the discussion as above, I am of the considered and
categoric view that in the light of the order of the Division Benches, this Court as
well as the Bombay High Court, the collection of tax in terms of Rule 2(1)(d)(iv)
prior to insertion of Section 66A is sans the authority of law. The petitioner is,
without question, entitled to the refund sought for by it in this regard.
12. There is no prayer for interest in the writ petition. However, the
Learned Counsel for the petitioner would request that interest be granted in the
facts and circumstances of the present case. The Learned Revenue Counsel ob-
jects vehemently.
13. I am of the view that the levy of interest would be justified for the
period post the judgment of the Supreme Court dated 14-12-2009, confirming the
position that the charge under Rule 2(1)(d)(iv) prior to the enactment of Section
66A is unconstitutional. Interest is awarded at the rate of 6% per annum from
5-5-2010 till date of payment.
14. This writ petition is allowed in the above terms. No costs.

_______

2020 (38) G.S.T.L. 317 (Chhattisgarh)
IN THE HIGH COURT OF JUDICATURE OF CHHATTISGARH AT
BILASPUR
P. Sam Koshy, J.
K.P. SUGANDH LTD.
Versus
STATE OF CHHATTISGARH

W.P.T. Nos. 36 & 49 of 2020, decided on 16-3-2020
Detention of Vehicle and Seizure of goods in Transit under GST -
E-way Bill and Invoice accompanying - Undervaluation allegation not a
GST LAW TIMES  16th July 2020  79