Andhra Pradesh High Court – Amravati
Louis Dreyfus Company Private Limited vs The Union Of India on 14 August, 2025
Author: R Raghunandan Rao
Bench: R Raghunandan Rao
1
RRR, J & JS, J
W.P.Nos.17220, 17224, 17226,
17229 & 17232 of 2024
IN THE HIGH COURT OF ANDHRA PRADESH
***
+ WRIT PETITION Nos:17220, 17224, 17226, 17229 & 17232 of 2024
W.P.No.17220/2024
Between:
# M/s Louis Dreyfus Company Private Limited
Through its Authorised Representative
Swanand Venkatesh Ahankari S/o. Venkates Ahankari
Office at Shop No.3-29-60/2, Opp. Swami Theatre Line,
Beside NCC Building, 2nd Line, Guntur-522006.
… Petitioner
(in all W.Ps)
$ AND$ 1. Union of India, Through the Revenue Secretary, Ministry of Finance,
Department of Revenue, North Block, New Delhi – 110 001.
2. The State of Andhra Pradesh Through its Principal Secretary to
Government, Revenue (CT-II) Department, Secretariat, Velagapudi,
Amaravathi, Guntur District.
3. The Commissioner of Central Tax & Customs (Appeals), D.No.3-30-
15, Ring Road, Guntur – 522006.
4. The Additional Commissioner (GST Appeals), O/o. The
Commissioner of Central Tax & Customs (Appeals) D.No.3-30-15,
Ring Road, Guntur – 522006.
5. The Deputy Commissioner of Central Tax, Guntur CGST Division,
D.No.3-1-197/5, BVSR Plaza, Opp. To IOCL Petrol Bunk,
Pattabhipuram Main Road, Guntur-522006.
6. The Assistant Commissioner of Central Tax, Guntur CGST Division,
D.No.3-1-197/5, BVSR Plaza, Opposite to IOCL Petrol Bunk
Pattabhipuram Main Road, Guntur-522006.
…. Respondents
(In all W.Ps)
2
RRR, J & JS, J
W.P.Nos.17220, 17224, 17226,
17229 & 17232 of 2024
Date of Judgment pronounced on : ____.08.2025
THE HON’BLE SRI JUSTICE R RAGHUNANDAN RAO
THE HON’BLE SMT JUSTICE SUMATHI JAGADAM
1. Whether Reporters of Local newspapers : Yes/No
May be allowed to see the judgments?
2. Whether the copies of judgment may be marked : Yes/No
to Law Reporters/Journals:
3. Whether The Lordship wishes to see the fair copy : Yes/No
Of the Judgment?
3
RRR, J & JS, J
W.P.Nos.17220, 17224, 17226,
17229 & 17232 of 2024
*IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
* THE HON’BLE SRI JUSTICE R RAGHUNANDAN RAO
*THE HON’BLE SMT JUSTICE SUMATHI JAGADAM
+ WRIT PETITION Nos:17220, 17224, 17226, 17229 & 17232 of 2024
% Dated: ____.08.2025
W.P.No.17220/2024
Between:
# M/s Louis Dreyfus Company Private Limited
Through its Authorised Representative
Swanand Venkatesh Ahankari S/o. Venkates Ahankari
Office at Shop No.3-29-60/2, Opp. Swami Theatre Line,
Beside NCC Building, 2nd Line, Guntur-522006.
… Petitioner
(in all W.Ps)
$ AND$ 1. Union of India, Through the Revenue Secretary, Ministry of Finance,
Department of Revenue, North Block, New Delhi – 110 001.
2. The State of Andhra Pradesh Through its Principal Secretary to
Government, Revenue (CT-II) Department, Secretariat, Velagapudi,
Amaravathi, Guntur District.
3. The Commissioner of Central Tax & Customs (Appeals), D.No.3-30-
15, Ring Road, Guntur – 522006.
4. The Additional Commissioner (GST Appeals), O/o. The
Commissioner of Central Tax & Customs (Appeals) D.No.3-30-15,
Ring Road, Guntur – 522006.
5. The Deputy Commissioner of Central Tax, Guntur CGST Division,
D.No.3-1-197/5, BVSR Plaza, Opp. To IOCL Petrol Bunk,
Pattabhipuram Main Road, Guntur-522006.
6. The Assistant Commissioner of Central Tax, Guntur CGST Division,
4
RRR, J & JS, J
W.P.Nos.17220, 17224, 17226,
17229 & 17232 of 2024D.No.3-1-197/5, BVSR Plaza, Opposite to IOCL Petrol Bunk
Pattabhipuram Main Road, Guntur-522006.
…. Respondents
(In all W.Ps)
! Counsel for Petitioner : Sri Sai Sandeep Manchikalapudi
(in all the writ petitions)
^Counsel for Respondent No.1 : Sri Narasimha Rao Gudiseva SC
For Central Government
^Counsel for Respondent No.2 : G.P. for Revenue
^Counsel for respondent Nos.3 to 6 : Sri P.S.P. Suresh Kumar
<GIST :
>HEAD NOTE:
? Cases referred:
1. 2020 SCC OnLine Guj 736
2. 61 GSTL 257
3. 2020 SCC Online Guj 3601 = (2021) 55 GSTL 390
4. (2024) 121 GSTR 268 = 2023 SCC OnLine Mad 7810
5. 61 GSTL 257
6. (1999) 3 SCC 362
7. 61 GSTL 257
8. (1999) 3 SCC 362
9. AIR 1964 SC 1006
10. 61 GSTL 257
5
RRR, J & JS, J
W.P.Nos.17220, 17224, 17226,
17229 & 17232 of 2024APHC010321912024
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3541]
(Special Original Jurisdiction)THURSDAY, THE FOURTHEENTH DAY OF AUGUST
TWO THOUSAND AND TWENTY FIVEPRESENT
THE HONOURABLE SRI JUSTICE R RAGHUNANDAN RAO
THE HONOURABLE SMT JUSTICE SUMATHI JAGADAM
WRIT PETITION Nos:17220, 17224, 17226, 17229 & 17232 of 2024
W.P.No.17220/2024
Between:
Louis Dreyfus Company Private Limited …PETITIONER
(In all writ petitions)
AND
The Union Of India and Others …RESPONDENT(S)
(in all writ petitions)
Counsel for the Petitioner:
1. SAI SUNDEEP MANCHIKALAPUDI
Counsel for the Respondent(S):
1. GP FOR REVENUE
2. P S P SURESH KUMAR
3. NARASIMHARAO GUDISEVA (CENTRAL GOVT COUNSEL)
6
RRR, J & JS, J
W.P.Nos.17220, 17224, 17226,
17229 & 17232 of 2024The Court made the following Order:
(per Hon’ble Sri Justice R. Raghunandan Rao)
As identical issues are involved in the present set of cases and as the
writ petitioner and the respondents are same, they are being disposed of by
way of this common order.
2. Heard Sri M. Sai Sundeep, learned counsel appearing for the
petitioner, Sri Narasimha Rao Gudiseva learned Central Government
Standing Counsel appearing for the 1st respondent, learned G.P. for Revenue
appearing for the 2nd respondent and Sri P.S.P. Suresh Kumar, learned
counsel appearing for respondents 3 to 6.
3. The petitioner is a registered person and is in the business of
import of agricultural products for onward use and sale within India. The
petitioner had imported certain agricultural products on CIF basis and paid
GST on ocean freight charges, on reverse charge mechanism basis, for
various months in 2017. The petitioner had paid GST, on the ocean freight
charges, on account of the notification No.8/2017-GST and Notification
No.10/2017-GST. These notifications were challenged before the Hon’ble
High Court of Gujarat in Mohit Minerals Pvt. Ltd., vs Union of India1 and
came to be struck down, by judgment dated 23.01.2020. Aggrieved by the
said judgment, the central Government had approached the Hon’ble Supreme
Court, which, by judgment, dated 19.05.2022, in Union of India and Anr. vs
1
2020 SCC OnLine Guj 736
7
RRR, J & JS, J
W.P.Nos.17220, 17224, 17226,
17229 & 17232 of 2024M/s. Mohit Minerals 2, had affirmed the view of the Hon’ble High Court of
Gujarat and set aside these notifications.
4. The petitioner, after the judgment of the Hon’ble Supreme Court,
filed applications, dated 30.03.2023, for refund of GST, paid on ocean freight
charges, in 2017. These applications came to be dismissed by separate
orders, dated 25.05.2023. Aggrieved by these orders of rejection, the
petitioner approached the appellate authority, by appeal Nos. 63 to 67 of 2023
(G) GST. All the 5 appeals were dismissed, by way of a common order, dated
27.02.2024. Aggrieved by these orders, the present set of writ petitions have
been filed.
5. The details of the writ petitions and dates of applications are
given below.
W.P.No. Period for Date of return Last date on Date of
which W.P. is for that period which application application
filed U/S 54 should be for refund
filed
WP No.17220/2024 September 18.10.2017 17.10.2019 30.03.2023
2017
WP No.17224/2024 November, 23.12.2017 22.12.2019 30.03.2023
2017
WP No.17226/2024 August, 2017 20.09.2017 19.09.2019 30.03.2023
WP No.17229/2024 July, 2017 23.08.2017 22.08.2019 30.03.2023
WP No.17232/2024 December, 20.01.2018 19.01.2020 30.03.2023
2017
2
61 GSTL 257
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W.P.Nos.17220, 17224, 17226,
17229 & 17232 of 2024
6. The contention of the petitioner was that no GST could be levied
on ocean freight charges paid, on CIF basis, for goods imported into India, by
virtue of striking down of Notification Nos.8 & 10/2017 by the Hon’ble
Supreme Court of India. Consequently, GST, on ocean freight charges, paid
by the petitioner, would have to be refunded to the petitioner. Both the original
authority and the appellate authority took the view that an application for
refund could be made, within a period of two years from the date of filing of
the return, under which the GST which is sought to be refunded, was paid and
that the said period of limitation has expired and no refund application was
maintainable. There is no dispute that the applications for refund have been
filed beyond the time stipulated under section 54 of the G.S.T. Act.
7. The learned counsel for the petitioner relying upon the judgment
of the Hon’ble High Court of Gujarat in Comsol Energy Private Limited vs.
State of Gujarat3and the judgment of the Hon’ble High Court of Madras in
Lenovo (India) Pvt. Ltd., vs. Joint Commissioner of GST (Appeals-1),
Chennai and Ors., 4 , would contend that the refund application was
maintainable, on the ground that Section 54 of the GST Act, would not be
applicable as this was payment of amounts under a mistake of law and in
relation to a tax which was not permissible. Consequently, refund of tax
cannot be denied on the ground of limitation under Section 54 of the GST Act.
3
2020 SCC Online Guj 3601 = (2021) 55 GSTL 390
4
(2024) 121 GSTR 268 = 2023 SCC OnLine Mad 7810
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W.P.Nos.17220, 17224, 17226,
17229 & 17232 of 2024
8. Sri P.S.P. Suresh Kumar, learned Standing Counsel appearing
for respondents 3 to 6 would contend that the refund application was not
maintainable on the ground that Section 54 of the GST Act has stipulated a
period of limitation within which such an application has to be made and no
further application can be made after the period of limitation. Apart from this,
the learned Standing Counsel would also contend that the judgment of the
Hon’ble Supreme Court in Union of India and Anr. vs. M/s. Mohit Minerals5,
which was delivered on 19.05.2022, would operate prospectively, and the
payment of tax prior to this date, by the petitioner, would not be affected by
the subsequent judgment of the Hon’ble Supreme Court of India. He relies
upon the judgment of the Hon’ble Supreme Court of India in the case of
Baburam vs. C.C. Jacob and Ors.,6.
9. There is no dispute that, by virtue of the judgment of the Hon’ble
Supreme Court, GST cannot be levied, on ocean freight charges, in CIF
contracts, in the course of import of goods into India. The only controversy left
before us is whether an application for refund, on 30.03.2023 is permissible.
10. Sri P.S.P. Suresh Kumar, learned Standing Counsel for the
respondents would contend that the judgment of the Hon’ble Supreme Court
in Union of India and Anr. vs. M/s. Mohit Minerals, would operate
5
61 GSTL 257
6
(1999) 3 SCC 362
10
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W.P.Nos.17220, 17224, 17226,
17229 & 17232 of 2024
prospectively from 19.05.2022, and relied upon the judgment of the Hon’ble
Supreme Court in Baburam vs. C.C. Jacob and Ors.
11. It is settled law that any judgment, declaring the law, would
operate both retrospectively and prospectively as the Hon’ble Supreme Court
is only declaring the law and is not creating any fresh law which would operate
prospectively. In fact, the Hon’ble Supreme Court, with an intention to avoid
unnecessary dislocation of the state of affairs, had innovated the concept of
prospective overruling, whereby the Hon’ble Supreme Court, in a given case,
could declare that the said judgment would operate prospectively and not
retrospectively. However, this situation would arise only when the Hon’ble
Supreme Court itself declares that the said judgment would be prospective in
operation. There is no such declaration in the judgment of the Hon’ble
Supreme Court in Union of India and Anr. vs. M/s. Mohit Minerals7.
12. In fact, our understanding of the law, as stated above, is fortified
by paragraph 5 of the judgment, of the Hon’ble Supreme Court, in Baburam
vs. C.C. Jacob and Ors., 8 relied upon by the learned Standing counsel,
Paragraph -5 is set out below:
“5. The prospective declaration of law is a devise
innovated by the Apex Court to avoid reopening of settled
issues and to prevent multiplicity of proceedings. It is also
a devise adopted to avoid uncertainty and avoidable7
61 GSTL 257
8
(1999) 3 SCC 362
11
RRR, J & JS, J
W.P.Nos.17220, 17224, 17226,
17229 & 17232 of 2024litigation. By the very object of prospective declaration of
law, it is deemed that all actions taken contrary to the
declaration of law prior to its date of declaration are
validated. This is done in the larger public interest.
Therefore, the subordinate forums which are legally bound
to apply the declaration of law made by this Court are also
duty-bound to apply such dictum to cases which would
arise in future only. In matters where decisions opposed to
the said principle have been taken prior to such
declaration of law cannot be interfered with on the basis of
such declaration of law. In the instant case, both decisions
of the DPC as well as the appointing authority being prior
to the judgment in Sabharwal case [(1995) 2 SCC 745 :
1995 SCC (L&S) 548 : (1995) 29 ATC 481] we are of the
opinion that the Tribunal was in error in applying this
decision. For this reason, these appeals succeed and are
hereby allowed; setting aside the orders and directions
made by the Tribunal in OAs Nos. 186 of 1994 and 961 of
1995.‖
13. The second ground, raised by Sri P.S.P. Suresh Kumar, is that
Section 54 of the CGST Act, which is extracted below, stipulates a limitation of
2 years and as such applications filed beyond this period are not maintainable.
54. Refund of tax.– (1) Any person claiming refund of
any tax and interest, if any, paid on such tax or any other
amount paid by him, may make an application before the
expiry of two years from the relevant date in such form
and manner as may be prescribed:
Provided that a registered person, claiming refund of
any balance in the electronic cash ledger in accordance
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W.P.Nos.17220, 17224, 17226,
17229 & 17232 of 2024with the provisions of sub-section (6) of section 49, may
claim such refund in the return furnished under section 39
in such manner as may be prescribed.
(2) A specialized agency of the United Nations
Organization or any Multilateral Financial Institution and
Organization notified under the United Nations (Privileges
and Immunities) Act, 1947, Consulate or Embassy of
foreign countries or any other person or class of persons,
as notified under section 55, entitled to a refund of tax paid
by it on inward supplies of goods or services or both, may
make an application for such refund, in such form and
manner as may be prescribed, before the expiry of six
months from the last day of the quarter in which such
supply was received.
(3) Subject to the provisions of sub-section (10), a
registered person may claim refund of any unutilized input
tax credit at the end of any tax period:
Provided that no refund of unutilized input tax credit
shall be allowed in cases other than–
(i). zero rated supplies made without payment of tax;
(ii) where the credit has accumulated on account of rate of
tax on inputs being
higher than the rate of tax on output supplies (other than
nil rated or fully exempt supplies), except supplies of
goods or services or both as may be notified by the
Government on the recommendations of the Council:
Provided further that no refund of unutilized input tax
credit shall be allowed in cases where the goods exported
out of India are subjected to export duty:
Provided also that no refund of input tax credit shall be
allowed, if the supplier of goods or services or both avails
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RRR, J & JS, J
W.P.Nos.17220, 17224, 17226,
17229 & 17232 of 2024of draw back in respect of central tax or claims refund of
the integrated tax paid on such supplies.
(4) The application shall be accompanied by–
a) such documentary evidence as may be prescribed to
establish that a refund is due to the applicant; and
b) such documentary or other evidence (including the
documents referred to in section 33) as the applicant may
furnish to establish that the amount of tax and interest, if
any, paid on such tax or any other amount paid in relation
to which such refund is claimed was collected from, or
paid by, him and the incidence of such tax and interest
had not been passed on to any other person:
Provided that where the amount claimed as refund is
less than two lakh rupees, it shall not be necessary for the
applicant to furnish any documentary and other evidences
but he may file a declaration, based on the documentary
or other evidences available with him, certifying that the
incidence of such tax and interest had not been passed on
to any other person.
(5) If, on receipt of any such application, the proper officer
is satisfied that the whole or part of the amount claimed as
refund is refundable, he may make an order accordingly
and the amount so determined shall be credited to the
Fund referred to in section 57.
(6) Notwithstanding anything contained in sub-section (5),
the proper officer may, in the case of any claim for refund
on account of zero-rated supply of goods or services or
both made by registered persons, other than such
category of registered persons as may be notified by the
Government on the recommendations of the Council,
refund on a provisional basis, ninety per cent. of the total
amount so claimed, excluding the amount of input tax
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RRR, J & JS, J
W.P.Nos.17220, 17224, 17226,
17229 & 17232 of 2024credit provisionally accepted, in such manner and subject
to such conditions, limitations and safeguards as may be
prescribed and thereafter make an order
under sub-section (5) for final settlement of the refund
claim after due verification of documents furnished by the
applicant.
(7) The proper officer shall issue the order under sub-
section (5) within sixty days from the date of receipt of
application complete in all respects.
(8) Notwithstanding anything contained in sub-section (5),
the refundable amount shall, instead of being credited to
the Fund, be paid to the applicant, if such amount is
relatable to–
(a) refund of tax paid on export of goods or services or
both or on inputs or input services used in making such
exports;
(b) refund of unutilized input tax credit under sub-section
(3);
(c) refund of tax paid on a supply which is not provided,
either wholly or partially, and for which invoice has not
been issued, or where a refund voucher has been issued;
(d) refund of tax in pursuance of section 77;
(e) the tax and interest, if any, or any other amount paid by
the applicant, if he had not passed on the incidence of
such tax and interest to any other person; or
(f) the tax or interest borne by such other class of
applicants as the Government may, on the
recommendations of the Council, by notification, specify.
[(8A) The Government may disburse the refund of the
State tax in such manner as may be prescribed.]76
(9) Notwithstanding anything to the contrary contained in
any judgment, decree, order or direction of the Appellate
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W.P.Nos.17220, 17224, 17226,
17229 & 17232 of 2024
Tribunal or any court or in any other provisions of this Act
or the rules made there under or in any other law for the
time being in force, no refund shall be made except in
accordance with the provisions of sub-section (8).
(10) Where any refund is due under sub-section (3) to a
registered person who has defaulted in furnishing any
return or who is required to pay any tax, interest or
penalty, which has not been stayed by any court, Tribunal
or Appellate Authority by the specified date, the proper
officer may–
(a) withhold payment of refund due until the said person
has furnished the return or paid the tax, interest or penalty,
as the case may be;
(b) deduct from the refund due, any tax, interest, penalty,
fee or any other amount which the taxable person is liable
to pay but which remains unpaid under this Act or under
the existing law.
Explanation.–For the purposes of this sub-section, the
expression ―specified date shall mean the last date for
filing an appeal under this Act.
(11) Where an order giving rise to a refund is the subject
matter of an appeal or further proceedings or where any
other proceedings under this Act is pending and the
Commissioner is of the opinion that grant of such refund is
likely to adversely affect the revenue in the said appeal or
other proceedings on account of malfeasance or fraud
committed, he may, after giving the taxable person an
opportunity of being heard, withhold the refund till such
time as he may determine.
(12) Where a refund is withheld under sub-section (11),
the taxable person shall, notwithstanding anything
contained in section 56, be entitled to interest at such rate
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W.P.Nos.17220, 17224, 17226,
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not exceeding six per cent., as may be notified on the
recommendations of the Council, if as a result of the
appeal or further proceedings he becomes entitled to
refund.
(13) Notwithstanding anything to the contrary contained in
this section, the amount of advance tax deposited by a
casual taxable person or a non-resident taxable person
under sub-section (2) of section 27, shall not be refunded
unless such person has, in respect of the entire period for
which the certificate of registration granted to him had
remained in force, furnished all the returns required under
section 39.
(14) Notwithstanding anything contained in this section, no
refund under sub-section (5) or sub-section (6) shall be
paid to an applicant, if the amount is less than one
thousand rupees.
Explanation.–For the purposes of this section,–
(1) ―refund includes refund of tax paid on zero-rated
supplies of goods or services or both or on inputs or input
services used in making such zero-rated supplies, or
refund of tax on the supply of goods regarded as deemed
exports, or refund of unutilized input tax credit as provided
under sub-section (3).
(2) ―relevant date means–
(a) in the case of goods exported out of India where a
refund of tax paid is available in respect of goods
themselves or, as the case may be, the inputs or input
services used in such goods,–
(i) if the goods are exported by sea or air, the date on
which the ship or the aircraft in which such goods are
loaded, leaves India; or
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W.P.Nos.17220, 17224, 17226,
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(ii) if the goods are exported by land, the date on which
such goods pass the frontier; or
(iii) if the goods are exported by post, the date of dispatch
of goods by the Post Office concerned to a place outside
India;
(b) in the case of supply of goods regarded as deemed
exports where a refund of tax paid is available in respect
of the goods, the date on which the return relating to such
deemed exports is furnished;
(c) in the case of services exported out of India where a
refund of tax paid is available in respect of services
themselves or, as the case may be, the inputs or input
services used in such services, the date of–
(i) receipt of payment in convertible foreign exchange [or
in Indian rupees wherever permitted by the Reserve Bank
of India, where the supply of services had been completed
prior to the receipt of such payment; or
(ii) issue of invoice, where payment for the services had
been received in advance prior to the date of issue of the
invoice;
(d) in case where the tax becomes refundable as a
consequence of judgment, decree, order or direction of the
Appellate Authority, Appellate Tribunal or any court, the
date of communication of such judgment, decree, order or
direction;
(e) in the case of refund of unutilized input tax credit under
clause (ii) of the first proviso to sub-section (3), the due
date for furnishing of return under section 39 for the period
in which such claim for refund arises;
(f) in the case where tax is paid provisionally under this
Act or the rules made there under, the date of adjustment
of tax after the final assessment thereof;(g) in the case of
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a person, other than the supplier, the date of receipt of
goods or services or both by such person; and
(h) in any other case, the date of payment of tax.
14. The Hon’ble High Court of Gujarat had an occasion to consider a
similar question, of whether an application for refund could be made, beyond
the period specified under Section 54 of the CGST Act, in Comsol Energy
Private Limited vs. State of Gujarat. Another similarity between the case
before the Hon’ble High Court of Gujarat and the present case is that both
arise out of the invalidation of Notification Nos.8 and 10/2017, dated
28.06.2017. In the case before the Hon’ble High Court of Gujarat, applications
for refund of tax, paid on ocean freight, after the Hon’ble High Court of Gujarat
had struck down Notification Nos.8 & 10/2017. In this regard, the applicability
of the period of limitation, set out under Section 54, came to be considered.
The Hon’ble High Court of Gujarat, after considering the judgment of the
Hon’ble Supreme Court in State of Madhya Pradesh and Anr., vs. Bhailal
Bhai and Ors.,9 had held in the following manner.
7. Section 54 of the CGST Act is applicable only for
claiming refund of any tax paid under the provisions of the
CGST Act and/or the GGST Act. The amount collected by
the Revenue without the authority of law is not considered
as tax collected by them and, therefore, Section 54 is not
applicable. In such circumstances, Section 17 of the
Limitation Act is the appropriate provision for claiming the
9
AIR 1964 SC 1006
19
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W.P.Nos.17220, 17224, 17226,
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refund of the amount paid to the Revenue under mistake
of law, which is as under:
“Section 17(1) of the Limitation Act, 1963
(1) Where, in the case of any suit or application for which
a period of limitation is prescribed by this Act,-
(a) the suit or application is based upon the fraud of the
defendant or respondent or his agent; or
(b) ***
(c) the suit or application is for relief from the
consequences of a mistake; or
(d) ***”
8. This Court, in the case of Binani Cement Ltd. v. Union
of India, (2013) 288 ELT 193 (Guj), held that where the
duty is collected without any authority of law, such
collection of duty is considered as collected without
authority of law and, therefore, is opposed to Article 265 of
the Constitution of India and, thus, unconstitutional. It is
held that the assessee is not bound by the limitation
prescribed under the special law for claiming the refund of
the excess duty or duty collected illegally. The period of
limitation prescribed under the Limitation Act would apply.
The relevant abstract of the decision at paragraphs nos.
23 and 25 are as under:
―xxxxxx…….‖
11. The issue is squarely covered by the decision of this
Court in the case of Gokul Agro Resources Ltd. v. Union
of India (Special Civil Application No. 1758 of 2020,
decided on 26.02.2020), wherein this Court directed the
respondent to pass an appropriate order in the refund
application preferred by the assessee without raising any
technical issue, within a period of four weeks. The relevant
paragraph of the finding of this Hon’ble Court is as under:
20
RRR, J & JS, J
W.P.Nos.17220, 17224, 17226,
17229 & 17232 of 2024“6 We may only say that since the Notification has been
struck down as ultra vires, as a consequence of the same,
the writ applicant seeks refund of the amount paid towards
the IGST. However, for this purpose, the writ applicant will
have to prefer an appropriate application addressed to the
competent authority. If any such application is preferred
for the refund of the amount, the authority concerned shall
immediately look into the same and pass an appropriate
order in accordance with law keeping in mind the decision
of this Court rendered in the case of Mohit Minerals
(supra). The competent authority shall not raise any
technical issue with regard to the claim for refund of the
IGST amount. Let this exercise be undertaken within a
period of four weeks from the date of receipt of the writ of
this order.”
15. In State of Madhya Pradesh and Anr., vs. Bhailal Bhai and
Ors., the Hon’ble Supreme Court was considering whether the High Court in
exercise of its jurisdiction under Article 226 of the Constitution of India could
direct the refund of amounts, which had been paid towards a tax, which has
subsequently been declared invalid. The Hon’ble Supreme Court held that the
High Courts could, in exercise of such jurisdiction, and for enforcement of
fundamental rights and statutory rights, give directions for repayment of
money realized by the Government without authority of law.
16. The view of the Hon’ble High Court of Gujarat appears to be that
any collection of tax would have to meet the requirements of Article 265 of the
Constitution of India, which stipulates that no tax can be collected without
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17229 & 17232 of 2024
authority of law. Where the levy of tax itself is found to be invalid or based
upon an enactment or charging provision, which is subsequently found to be
invalid or violative of the Constitution of India, any payment made in discharge
of such a liability, cannot be treated as an exaction of a tax at all. In such
circumstances, payment of such an invalid tax would not be collection of tax
and can be treated only as payment made by the dealer or a registered
person, under a mistake of law. Once the payment of money is not treated as
payment of tax, the question of applying any period of limitation, set out in any
provision of the Act, for refund of money cannot be applied. We are in
respectful agreement with this proposition of law.
17. The Hon’ble High Court of Madras, in Lenovo (India) Pvt. Ltd.,
vs. Joint Commissioner of GST (Appeals-1), Chennai and Ors.,
considered another aspect of this issue in terms of the language of Section 54
(1) of the CGST Act. The Hon’ble High Court of Madras, after considering the
language in Section 54(1) of the CGST Act had observed as follows:
15.7 Thus, a reading of the section 54(1) of the CGST Act
would make it clear that the assessee can make the
application within two years. The terms used in said
section ―may make application before two years from the
relevant date in such form and manner as may be
prescribed‖, which means that the assessee may make
application within two years and it is not mandatory that
the application has to be made within two years and in
appropriate cases, refund application can be made even
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W.P.Nos.17220, 17224, 17226,
17229 & 17232 of 2024beyond two years. The time-limit fixed under section 54(1)
is directory in nature and it is not mandatory. Therefore,
even if the application is filed beyond the period of two
years, the legitimate claim of refund by the assessee
cannot be denied in appropriate cases.
18. We would, with respect, leave this view open, for consideration, in
a more appropriate case.
19. In the circumstances, the application for refund, cannot be treated
to be beyond time and would have to be considered in the light of the
judgment of the Hon’ble Supreme Court in the case of Union of India and
Anr. vs. M/s. Mohit Minerals10.
20. Accordingly, these writ petitions are allowed setting aside the
orders of rejection as well as the common appeal order of the appellate
authority, confirming the order of rejection by the original authority with a
further direction to the original authority, viz., the 6th respondent-Assistant
Commissioner of Tax, to reconsider the application of the petitioner, dated
30.03.2023, for refund of tax without going into the question of whether the
said application is within time or not. The 6th respondent shall consider and
pass orders, on the application of the petitioner, dated 30.03.2023, within a
period of four weeks from the date of receipt of this order. There shall be no
order as to costs.
10
61 GSTL 257
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17229 & 17232 of 2024
As a sequel, pending miscellaneous applications, if any shall stand
closed.
_______________________________
R. RAGHUNANDAN RAO, J
__________________________
SUMATHI JAGADAM, J
Js.
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17229 & 17232 of 2024
THE HON’ABLE SRI JUSTICE R RAGHUNANDAN RAO
AND
THE HON’BLE SMT. JUSTICE SUMATHI JAGADAM
W.P.No: 17220, 17224, 17226, 17229 & 17232 of 2024
(per Hon’ble Sri Justice R Raghunandan Rao)
______ August, 2025
Js