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Rajasthan High Court also declared levy of GST on ocean freight on import as unconstitutional where supplier and recipient both are located outside India. 

Following the judgement given by Gujarat High Court in the case of Mohit Minerals Pvt. Ltd, Rajasthan High Court also allowed the petition of taxpayer. Though the judgement of Gujarat high court is under challenge before Hon'ble SC, but the operation of this order has not been stayed so far.

Petitioner has filed the petition seeking following reliefs:-

“a. To issue appropriate writ/order/direction to the effect declaring Sr. No. 9(ii) of the Notification No. 8/2017-Integrated Tax (Rate) dated 28.06.2017 to be an unconstitutional and ultra-vires to the provisions of the Integrated Goods and Service Tax Act, 2017 to the extend it prescribe rate for levy of Integrated-tax on services by way of transportation of goods by vessel from a place outside India, up to custom station of clearance of India, where service provider i.e. supplier of service and service recipient i.e. recipient of service both are located in non taxable territory i.e. Outside India;

b. To issue appropriate writ/order/direction to the effect declaring the Sr. No. 10 of the Notification No. 10/2017 – Integrated Tax (Rate) dated 28.06.2017 to be an unconstitutional, ultra-vires and de-hors to the provisions of the Section 5(3) of the Integrated Goods and Service Tax Act, 2017 read with Section 2(93) of the Central Goods and Service Tax Act, 2017 to the extent it deems ‘Importer’ within meaning of Section 2(26) of the Custom Act, 1962 as ‘recipient’ of service;

Learned counsel for the petitioner has submitted that he is only pressing reliefs at number (a) & (b) and has further submitted that the said reliefs claimed by the petitioner are covered by decision given by the Gujarat High Court in the case of Mohit Minerals Private Limited vs. Union of India and Ors. decided on 23.01.2020.

Learned counsel for the respondents has submitted that the judgment passed by the Gujarat High Court in the case of Mohit Minerals Private Limited (supra) is under challenge before the Apex Court but operation of the judgment has not been stayed.

The operative part of the order passed by the Gujarat High Court in Mohit Minerals Private Limited (supra) reads as under:

“In the result, this writ-application along with all other connected writ-applications is allowed. The impugned Notification No. 8/2017 - Integrated Tax (Rate) : MANU/GSIT/0006/2017 dated 28th June 2017 and the Entry 10 of the Notification No. 10/2017 – Integrated Tax (Rate) : MANU/GSIT/0014/2017 dated 28th June 2017 are declared 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.

Keeping in view the submissions made by the learned counsel for the parties, this petition is disposed of in terms of the decisions given by the Gujarat High Court in Mohit Minerals Private Limited (supra) & M/s COMSOL Energy Private Limited (supra).


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Author:

TaxReply


Jul 26, 2021


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