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2024 DIGILAW 1677 (GUJ)

Vaishno Polymers v. Union Of India

2024-08-07

BHARGAV D.KARIA, NIRAL R.MEHTA

body2024
ORDER : BHARGAV D. KARIA, J. 1. Heard learned advocate Mr.Hardik P.Modh for the petitioner and learned advocate Mr.Utkarsh R.Sharma for the respondent nos.2 and 3. 2. By this petition under Article 227 of the Constitution of India, the petitioner has prayed for the following reliefs: “(a) That this Hon’ble Court be pleased to declare that the Brooms sticks imported by the petitioner which are made out of Cocos Nucifera and Nypha Fruitcane, are exempted from the purview of IGST in view of Sr.No.144 of Notification No.2/2017 Integrated Tax(Rate) dated 28.06.2017 as amended by Notification No.28/2017 Integrated Tax (Rate) Dated 22.09.2017 read with Notification No.1/2017-Integrated Tax (Rate) dated 28.06.2017 as amended by Notification No. 27/2017-Integrated Tax (Rate) dated 22.09.2017; (b) That this Hon’ble Court be pleased to issue a writ of certiorari, or a Writ in the nature of certiorari or any other appropriate writ, calling for the records related to Order-In- Original No.MCH/DC/MK/666/2020-21 dated 31.12.2020 (Annexure Q), Order-In-Original No. MCH/DC/MK/666A/2020-21 dated 31.12.2020 (Annexure R), and Order-In-Original No.MCH/DC/MK/666B/2020-21 dated 31.12.2020 (Annexure S), and after looking into the same and the legality thereof, this Hon’ble Court be pleased to quash and set aside Order-In-Original No. MCH/DC/ MK/666/2020-21 dated 31.12.2020 (Annexure Q) Order-In-Original No. MCH/DC/MK/666A/2020-21 dated 31.12.2020 (Annexure R) and Order- In-Original NO. MCH/DC/ MK/666B/2020-21 dated 31.12.2020 (Annexure S). (c) That this Hon’ble Court be pleased to issue a Writ of Prohibition, or a Writ in the nature of Prohibition, or any other appropriate writ, Order or prohibition, prohibiting the respondents by themselves, their servants and their agents from giving effect to and/or implementing the impugned Order-In- Original No. MCH/DC/MK666/2020-21 dated 31.12.2020 (Annexure Q) Order-in-Original No. MCH/DC/MK/666A/2020-21 dated 31.12.2020 (Annexure R) and Order- In-Original No. MCH/DC/MK/666B/2020-21 dated 31.12.2020 (Annexure S). d) that pending the hearing and final disposal of the present petition, this Hon’ble Court be pleased to direct the respondents, their servants, agents, officers and subordinate, restricts them from acting on or in consequence of Order-In-Original No. MCH/DC/MK/666/2020-21 dated 31.12.2020 (Annexure Q) Order-in-Original No. MCH/DC/MK/666A/2020-21 dated 31.12.2020 (Annexure R) and Order-In-Original No. MCH/DC/MK/666B/2020-21 dated 31.12.2020(Annexure S). e) Issue/pass another writs(s) Order(s) or direction(s) that this Hon’ble Court may deem fit and proper in the facts and circumstances of the case; f) Award costs of the petition in favour of the Petitioner.” 3. e) Issue/pass another writs(s) Order(s) or direction(s) that this Hon’ble Court may deem fit and proper in the facts and circumstances of the case; f) Award costs of the petition in favour of the Petitioner.” 3. Learned advocate Mr.Hardik P.Modh for the petitioner submitted that the petitioner is importing broomsticks inter alia made from coconut leaves from Indonesia into India. It was submitted that as per the terms of Section 5(1) of the IGST Act, 2017, the Central Government by Notification No.1 of 2017 dated 28.06.2017 notified the IGST rate of 05% in respect of goods specified in Schedule- I and in the said Schedule Broomsticks was at serial No.260. 4. It was submitted that as per the power conferred under Section 6 of the IGST Act, the Central Government has power to grant exemption from tax and accordingly the Notification no.2 of 2017 dated 28.06.2017 was issued wherein, as per Sr.No.144 under the chapter/ heading/ sub-heading/ tariff item 9603; Muddhas made of sarkanda and phool bahari jhadoo have been exempted from the purview of IGST. 5. It was submitted that subsequently by Notification dated 22.09.2017, serial no.260 was amended by levy of IGST at the rate of 5% on broomsticks other than brooms consisting of twigs or other vegetable materials, bound together, with or without handles. 6. It was submitted that by other Notification no.28/2017 dated 22.09.2017 in terms of Section 6(1) of the IGST Act, Serial no.144 was also amended to include muddhas made from sarkanda brooms or brushes consisting of twigs or other vegetable material bound together with or without handles. It was submitted that the petitioners have imported the broomsticks which have been subject of 5% levy by the impugned Order-In-Original dated 31.12.2020 for the period from March 2018 to December, 2018. 7. Learned advocate Mr.Modh further submitted that the adjudicating authority has not considered the reply to the show- cause notice which was tendered by the petitioner and the petitioner could not appear in the personal hearing because of COVID-19-PANDEMIC in the month of October 2020. 8. It was therefore submitted that the impugned order is an ex-parte order in breach of principles of natural justice. 8. It was therefore submitted that the impugned order is an ex-parte order in breach of principles of natural justice. Learned advocate Mr.Modh also pointed out from the records that after December, 2018, the petitioner has not been subjected to levy of IGST at 5% per annum on the ground that the petitioner imported the broomsticks in bulk, which is not stated either in Entry no.260 or 144 for levy of IGST or granting exemption. 9. It was further submitted that the broomsticks made by the petitioner is made up of vegetables as stated in the Entry no.144 and accordingly, the same is not subjected to the IGST at the rate of 5% from January, 2019. Learned advocate Mr.Modh also invited the attention of the Court to the additional affidavit filed on behalf of the petitioner pursuant to the order dated 23.12.2021 passed by this Court, whereby the petitioner has placed on record the additional facts to show that the petitioner imported similar consignments of broomsticks by claiming exemption under Serial No.144 of Notification no.28/2017 dated 22.09.2017. 10. On the other hand, learned advocate Mr.Utkarsh Sharma for the respondent nos.2 and 3 submitted that there is an alternative efficacious remedy available to the petitioner to challenge the impugned order in original by preferring an appeal before the appellate authority. It was further submitted that the petitioner had imported broomsticks from Indonesia under Chapter heading 9603 and thereby availed the benefit of Serial No.144 of Notification no.28/2017 dated 22.09.2017, which is rightly not treated as exempted from the purview of IGST in view of the notification an entry no.260 and the IGST at the rate of 5% is rightly levied. 11. Be that as it may, the fact remains that the impugned order-in-original is passed in the fragrant breach of principles of natural justice by not granting any opportunity of hearing to the petitioner and even the reply submitted by the petitioner is not considered and it is stated that no reply is filed, though the petitioner has tendered the reply in response to the show-cause notice on 11.06.2020. 12. 12. In view of the above, without entering into the merits of the matter, the impugned Order-In-Original dated 31.12.2020 is hereby quashed and set aside and the matter is remanded back to the adjudicating authority who shall pass a fresh de novo order after giving an opportunity of hearing to the petitioner and the petitioner shall be at liberty to raise all the contentions which are raised in this petition. Such exercise shall be completed within twelve weeks from the date of receipt of copy of this order. With the aforesaid direction, the petition is disposed of. Notice is discharged.